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Monday, March 10, 2014

Tree planting dispute breaks out in Hillcrest

Posted By on Mon, Mar 10, 2014 at 10:07 AM

click to enlarge READY FOR TREES: Orange cones in sidewalk show where disputed trees would be planted.
  • READY FOR TREES: Orange cones in sidewalk show where disputed trees would be planted.
A dispute is brewing on whether the Hillcrest Residents Association can plant trees in the sidewalk in front of a vacant garage on Kavanaugh Boulevard.

John Baker, a lawyer, wrote me today because he knows of my long interest and support of Tree Streets, the nonprofit "urban forestry" project to reforest the streets of Little Rock. The Hillcrest Residents Association has also enlisted in the cause of planting trees and has done work on Kavanaugh Boulevard that has stirred opposition from one land owner, lawyer Hal Kemp, who, through a limited partnership, owns a garage building at 2904 Kavanaugh Boulevard.

HRA has dug holes on the sidewalk in front of the building in preparation for planting. That drew an e-mail to Baker from Kemp:

John: I have spoken to Bruce Moore and he advises me that he has left word for you to call him concerning whether or not the City has authorized you or any other private organization to plant trees within the public right of way. It is my understanding that the City has not granted you, the Association or any other person or entity the right to plant trees in the right of way in front of our building.

I told you I object to you or the association planting trees in front of 2904 Kavanaugh. Your trees and the holes in the sidewalk will increase the burden upon the servient estate of our abutting land to which burden we object. The trees will be a nuisance, will obstruct the views of the building and will create a hazard for my family and any guests or invitees attending our property as well as members of the public. Moreover you have left an open hole in the sidewalk with inadequate warnings putting the traveling public at risk for injury.

I recommend that you take a look at McGee v. Swearengen, 199 Ark. 735, 109 S W 2d 444. As the owner of the property abutting Kavanaugh, we own the land under the sidewalk and the street to the centerline thereof subject to the public’s right of travel. The Public’s right does not include the right to plant trees, absent consent of the abutting property owner. To apply your logic, I have the right to come to you house next week and dig up the lawn in the right of way in front of your house and plant trees all across that right of way fronting your home, all without bothering to call you in advance.

I think you probably ought to give Bruce Moore a call before you go any further. His cell number is XXX-XXXX.

Finally, please accept this email as a demand that you and the association immediately replace the concrete you have removed and desist any further planting activities in front of our building. You can reach at 501-XXX-XXXX if you need me. Hal

Baker responded:

Hal:

Thanks for your call earlier this afternoon. I was sorry to learn that you are upset about the trees that are being planted by HRA along Kavanaugh Boulevard’s sidewalks this weekend.

Based upon my review of the attached city records, your property line (2904 Kavanaugh) ends well north of where HRA caused tree beds to be installed and where trees soon will be planted. From my review, the tree beds and trees will be planted on City of Little Rock property. If I am incorrect, I feel confident that the tree beds HRA installed at least fall within the City’s 30 foot right of way calculated from the centerline of Kavanaugh Boulevard. If you have a recorded survey that you believe shows otherwise, please supply it to us.

I have copied for you below the city code provision I mentioned to you in our call. Until you are able to provide us with a recorded survey that shows that the planted trees fall exclusively within your property or not within the City’s right of way, I recommend that you refrain from following through on your threat that you communicated to me in our call (that you will remove the trees that HRA plants in the tree beds) until such time as you obtain the required city permit. I’m confident that HRA, Hillcrest residents, and the city would have an interest in ensuring that Section 15-51 is enforced. [The code prohibits tree cutting within public right of way or on city property without permit.]

Please call or email with any questions or concerns. Also, please understand that I am only a volunteer assisting HRA with this year’s tree planting project, as I have done every year the organization has planted trees along Kavanaugh Boulevard. I have copied Mr. [Arthur Paul] Bowen (who I understand is HRA’s president) on this email.

Baker provided a copy of the plat that he says shows Kemp's property doesn't cover the sidewalk where holes were dug, much less a portion of Kavanaugh. I called Kemp for a comment and to ask whether he had a survey that contradicted Baker. He said he preferred not to comment and hoped the disagreement would be resolved. Baker says the HRA will take up the matter at a meeting tonight.

I've left a message with Bruce Moore to see if the city has officially intervened.

Aesthetic note: Some trees would improve the look of that spot. And, really: Trees are a nuisance?

UPDATE: I reached City Manager Moore, attending a meeting in Washington. He said he'd asked HRA to hold off planting the trees in front of Kemp's property at least until all could meet on the matter. He said the city has no objection to the HRA's long-running project to plant trees in city right of way and acknowledges its ability to do so. But he said it would probably be helpful if there was some sort of formal notification process when projects were underway. He said he hadn't been able to study the particular dispute. But he asked, and the HRA agreed, to hold off until all parties could get together to "discuss what's allowed and what's not." 

click to enlarge TREELESS: As the building looks now from the front.
  • TREELESS: As the building looks now from the front.

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