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8. Turpin <br />. Soto <br />Kim Adams Pratt <br />1. Kenyon <br />Eileen s`'1. Keller <br />iiNary L. Graber <br />K. ra R. Comeau <br />TO: Planning Commission Members <br />Carol Lumb, Senior Planner <br />FROM: Ann Marie Soto, Assistant City Attorney <br />DATE: January 2, 2018 <br />RE: Tree Liability <br />Doug F. Mosich <br />Shelley M. Kerslake <br />3967 _ 20 <br />This memorandum addresses general liability issues related to trees abutting the right-of- <br />way in light of the City's pending review of tree code amendments. <br />A. Private Property. <br />The general rule is that a property owner is liable for damage caused by trees, and their <br />roots, which extend onto the private property of another. Property owners have a duty to protect <br />abutting private properties from encroachments and damage caused by such encroachments. See <br />Forbus v. Knight, 24 Wn.2d 297, 313 (1945). To that end, an abutting owner will likely be <br />found liable for tree root damage to a sidewalk resulting from trees on their property, but <br />adjacent to the right-of-way line. See Rosengren v. City of Seattle, 149 Wn. App. 565, 575 <br />(2009) ("an abutting land owner has a duty to exercise reasonable care that the trunks, branches, <br />or roots of trees planted by them adjacent to a public sidewalk do not pose an unreasonable risk <br />of harm to a pedestrian using the sidewalk"). <br />B. Street Trees. <br />As a preliminary matter, cities generally have only an easement interest in right-of-way <br />and do not own streets and sidewalks. The mere fact that a tree is in the improved portion of a <br />right-of-way does not make it a tree for which a city is responsible. Thus, traditionally, abutting <br />property owners may plant, maintain, and remove trees in the planter strip, and a municipality <br />cannot remove such trees unless they are a hazard or a nuisance. See Shaw v. City of Yakima, <br />183 Wn.2d 200 (1935). <br />However, municipalities, such as Tukwila, often require regular maintenance of trees and <br />permits for tree removal, and sometimes require planting and maintenance of trees in connection <br />with development. Where the tree is planted and maintained by the city (or planted at the behest <br />Attachment F <br />Kenyon Disencl, PLLC The Municipal Law Firm I I Front Street South Issaquah, WA 98027-3820 Tel: (425) 392-7090 Fax: (425) 392-7071 www5elyondisend.com <br />