Stop Government Abuse!
TAKE NOTICE!! THIS COULD HAPPEN TO YOU NEXT!
** NOTE: Their will be a discussion of this issue at the Berwick Council workshop on Monday, January 9 at 7:00 pm at Berwick Borough city hall on North Market Street. This is a public meeting and anyone may come, and voice their opinion on this matter. **
This is a posting site for issues of government over extending or obsessively abusing their powers. Also addressed will be issues of negligence or misinterpretation of the law.
For now, it will be a site for updating the progress of my actions against the Borough of Berwick (PA) for citing me for failing to maintain the sidewalk which abuts my property at 1308 Fairview Avenue. This, per 302.2 of the International Property Maintenance Code of 2009, a code which the borough adopted by ordinance (note 302.2 of this code directly reflects the PA Boroughs code, thus this is not even relevant to this case.)
The shortened version is that in the spring of 2017 I received notice to repair the sidewalk, or risk being fined ($300.00/day minimum.) I received a second notice October 18 of 2017, and also received a notice to remove the tree which caused the damage and had subsequently died.
I filed an appeal for a hearing upon receiving that notice, for which I was given all of 5 days to respond. As a side note, the estimates I got for removing this tree and repairing the 30 or so feet of damaged sidewalk averaged $8,000.00!
You will note that the tree in actually in the roadway, on borough property. The sidewalk is also on borough property; my property line ends at the sidewalk according to the last survey. This in only slightly significant in that it adds some “teeth” in that common law states that a tree on another’s property is the liability of the owner of that property.
So, for those of you who are curious as to why I am fighting this, and what it means to you as a homeowner, follow closely. It is so simple pretty much anyone will easily understand it!
First, make no mistake, I am not trying to change any laws, nor interpret the law to suit my needs. To the contrary, it is my intent to uphold the existing laws and hold the borough accountable to those laws, which clearly show the borough, as owner of the shade tree which damaged my sidewalk, to be liable for damages caused by that tree. I also acknowledge my responsibility to repair the sidewalk, and also my responsibility to “plant and replant” shade trees when asked to do so by the borough. What I am questioning is who has the fiduciary responsibility for this tree and who is accountable for the cost to repair the damage – the laws indicate that the borough is liable, no less than if a borough snow plow had destroyed the sidewalk.
So, what laws apply? There is the Berwick Borough code, written circa 1970 with a few updates Lying around. And there is the 2009 International Building Maintenance code, which was adopted by ordinance. Both of these, however, are superseded by the state law, PA Consolidated Statutes, Title 8, “Boroughs and Incorporated Towns.” This is the law under which boroughs and incorporated towns operate. In the case of both sidewalks and shade trees this law covers and adds to the Borough code book and International Property Code – Therefore, we need only refer to this statute.
OK – Let’s go!
Title 8 specifically states that the abutting property owner is liable to maintain the sidewalks in good condition. In addition, the shade tree section states that the abutting property owner is liable to “plant and replant” the shade trees (note this is important since it does turn over liability for damage, or even the role of monitoring the condition of any shade tree.) So, based on this code, I accept that I am liable to both repair the sidewalk, and remove the now dead tree – but, as you will see, the borough is liable for the damage and therefore should bear the cost of repair.
Title 8 states:
2720. Care, custody and control.
(a) Council authority.--Council shall have exclusive care, custody and control of shade trees in the borough. Council may:
(1) Plant, transplant, remove, maintain and protect shade trees on the streets and highways in the borough.
(e) Diseased plants, shrubs and trees.--Council may, upon notice as may be provided by ordinance, require owners of property to cut and remove plants, shrubs and trees afflicted with any disease that threatens to injure or destroy plants, shrubs and shade trees in the borough under regulations prescribed by ordinance. Upon failure of any owner to comply with the notice, the borough may cause the work to be done by the borough and assess the cost against the owner in accordance with section 2720.2.
Note the wording “Council shall have exclusive care, custody and control of shade trees in the borough.” This is a very specific term which has been used for many years by the insurance industry. It gives the borough the ability to plant whatever they want, wherever they want, but it also puts the liability for damage or injury specifically and ONLY on the borough (EXCLUSIVE.)
In general, “care” means that the insured is responsible for the property, “custody” means that the property is accounted for by the insured, and “control” means that the insured is responsible for the management or oversight of the property.
So the borough is responsible (has the liability,) knew the tree existed, and is responsible for the management and oversight of the tree.
This alone is enough to validate my claim that the borough is liable for the damage caused by the tree, but…
(c) Limitation.--Nothing in this part may authorize council to plant or replant or require the planting or replanting of trees at any point which may interfere with the necessary or reasonable use of any street or abutting property or the business conducted on the property.
Note that section C prohibits the borough from planting or leaving planted a destructive tree. The borough was negligent in this regard.
So let’s look at whether or not the borough can be held accountable:
Pennsylvania’s Government Immunity Law
The state immunity laws protect local government agencies and their employees from personal injury and property damage claims. To be protected, the act giving rise to the injury must have occurred during the scope of or in furtherance of the agency’s official duties. For example, a municipal employee who is involved in a car accident after work cannot claim immunity against legal claims arising out of the accident.
The law, however, does not protect local government agencies from every personal injury or property damage claim. The law provides eight exceptions to the governmental immunity laws, including:
For one of these exceptions to apply, the plaintiff must be able to prove:
It is important to note that the employee’s acts must have been negligent. The exceptions do not apply if the act was willful, intentional or criminal.
You will notice that a government agency has no immunity in so far as both trees and sidewalks are concerned – they can be held accountable and can even be sued.
Now, about the tree – a white ash, the tree which destroyed the sidewalk. Is the borough negligent as pertains to the tree in general? Let’s have a look!
Court rulings on root trespass
Therefore, the Court overruled Smith v. Holt, insofar as it conditions a right of action upon the “noxious” nature of a plant that sends forth invading roots or branches into a neighbor’s property. Instead, it adopted the Hawaii Rule, finding that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to adjoining property, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. The Court was careful to note that it wasn’t altering existing law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.
So, the tree is a nuisance and the owner (the borough) is liable.
By : Anthony Georgelis
21st Jul 2014
Another example of municipal liability for a sidewalk. Notice the term again – “CUSTODY AND CONTROL”
Lawsuits based on negligence are the most common kind of civil action in the area of tort law. Negligence is usually defined as the failure to exercise the degree of care that a reasonable, prudent person would have exercised under the circumstances. This is sometimes called a lack of" due care." If such lack of care causes harm (physical, mental, or economic) to the plaintiff, the defendant may be liable to pay damages. If the plaintiff has also been negligent, however, and such negligence contributes to the harm he or she complains of, his or her recovery may be reduced or lost entirely. (See "Contributory and Comparative Negligence" below.) This demonstrates the "fault" basis that characterizes this area of tort law.
Negligence is unintentional neglect, in contrast to intentional torts or strict liability torts. In most states, strict liability applies to the seller of a product in a defective condition that is unreasonably dangerous because of that condition and causes harm.
Notice that “negligence” is related to something which is “unreasonably dangerous because of that condition and causes harm.
And that tree? White ash trees have been known to cause significant structural damage for almost 100 years.
How To Pick The Best Tree That Will Not Damage Your Foundation
January 29, 2014
What kind of trees should not be planted near a house foundation?
Trees that grow long, lateral roots should not be installed near house. By growing under your structure and forcing it upward. This can cause your foundation to heave. What’s more, because trees need water to sustain them, they will rob your soil of much needed moisture and this can be damaging to your structure.
As a general rule, it’s best to plant trees that have taproots. This group of trees includes oaks, walnut trees, hickory and conifers.
A second group of trees, such as maples, ash trees and cottonwoods, are known for growing invasive, lateral trees roots and are not good choices. Deciduous trees tend to have a deep root system and are best avoided.
You will notice that the white ash is not recommended and may cause structural damage.
So what does the Borough of Berwick have to say in regards to this?
All you need to do is download their form for applying for a permit to remove a tree and go to page 2:
Berwick Borough Approved Street Tree Planting List
Because of the issues that can accompany planting trees as well as removing them, the Borough of Berwick has placed guidelines on trees between the sidewalk and the curb. Borough Ordinance requires that if a property owner removes a tree between the sidewalk and the curb, they must replant a tree in its place somewhere between the sidewalk and the curb. Additionally, because of the size some trees can get, the Borough has requirements and approved trees that are allowed to be planted in this area. Trees are categorized by small, medium, or large. If there are utility, cable, or phone wires along the street, the property owner must choose from the “small tree” list. It is recommended to note on this list of trees, that when a person chooses a tree(s), to keep in mind
Large Trees – mature height 50 ft or more.
Northern Red Oak (recommend planting in the fall only)
English Oak (specify high branching)
Honeylocust – “Skyline” or “Shademaster” (pruned properly)
Willow Oak (this tree will drop acorns)
White Oak (this tree will drop acorns)
Ginkgo (male only)
Green Ash – “Summit”, “Patmore”, or “Urbanite”
White Ash – “Rosehill” or “Autumn Purple”
Zelkova – “Green Vase”
Little Leaf Linden – “Greenspire”
Blackgum or Tupelo
Red Maple – “Red Sunset” (strong central leader)
Wow! “Because of the issues that can accompany planting trees as well as removing them, the Borough of Berwick has placed guidelines on trees between the sidewalk and the curb.”
The borough recognizes that trees can damage curbs, yet they RECOMMEND planting white ash by the sidewalk!
This makes the borough not only negligent, but also complicitt!
Is there anyone who can now not understand why I am appealing this matter?
Remember, YOU may be next!
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Andrew Shecktor is an elected member of Berwick Council and an 11th District candidate for the U.S. Congress