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Inkom sues family for refusing to remove tree, seeks up to $35,000 in damages

November 27, 2018

INKOM — This Southeast Idaho city is suing a local family for up to $35,000 over their refusal to remove a tree on their property that the city has deemed a “public nuisance.”

Tracie and Gerrad Montgomery, who have lived on the 500 block of North Rapid Creek Road in Inkom for nearly 20 years, told the Journal on Wednesday that they received an official complaint and court summons from the city of Inkom in September because they have refused to remove a Norway spruce tree that they planted on the corner of their property when they moved into their home in 1999.

The complaint states that the Montgomerys’ tree is a “public nuisance and an actual obstruction of a public right of way,” and “despite repeated requests to remove the tree, (the Montgomerys) have failed and refused” to do so.

Further, the complaint states the city of Inkom is entitled to its cost of removing the tree in addition to attorney fees and trespassing costs for the many years the tree has allegedly blocked a public right of way. This aggregate amount of damages cannot exceed $35,000, according to the complaint.

“If you go up and down the streets of Inkom, trees are all over the place, especially in the undeveloped part of town,” Tracie said. “My tree is not out there in the right of way, but they are saying people can’t walk around my tree. They never did ask me to trim the tree, and all of the sudden I receive this letter from an attorney stating I’m being sued.”

Inkom Mayor Joel Jolley said in a written statement Wednesday this particular tree has been an issue of contention between Inkom and the Montgomerys for the past 15 years.

“It finally has gone to a point where the tree is so big that it has to be removed before it could do damage to our utilities system underground,” Jolley said. “Over the past few years they have been asked and reminded to move it, yet here we are. (They) made us have to take them to court to make it happen.”

Tracie said she and her husband first learned the city of Inkom had taken issue with the location of their tree on Aug. 16, 2017 when city officials sent her a letter requesting removal of the tree.

Jolley said that he and previous Inkom Mayor Paul Lish have asked them to remove the tree for a decade-plus. When contacted on Wednesday, Lish, who is the current Inkom City Council president, declined to comment.

Ernie Moser, who served as Inkom mayor after Lish and before Jolley, and who lives several houses down from the Montgomerys on Rapid Creek Road, said he never recalls having spoken to the Montgomery family about their tree.

Tracie did not respond to the Aug. 16 letter and received another notice, this time from an attorney representing the city, Kent Higgins of the Pocatello-based law firm Merrill & Merrill, on Aug. 31, 2017, that stated she had until Sept. 15, 2017, to remove the tree, otherwise he would instruct the city to remove the tree at her expense.

Tracie called and spoke to the attorney on Sept. 13 and sent a letter to Higgins stating that she disagreed with the city’s claim that her tree was a public nuisance.

“I have never been formally told by the city that the tree is in violation of any specific city code or ordinance,” Tracie wrote in the letter. “I have been told through subsequent conversations with you that I am in violation of something and that a municipality is able to arbitrarily pick and choose whom they will enforce their will upon.”

Higgins responded to Tracie’s letter on Dec. 6, 2017, stating that Tracie was aware of the specific statutes because they discussed them together on the phone. Nonetheless, Higgins attached the specific statutes to the email and said the Montgomery family had until April 15, 2018, to remove the tree.

While the Inkom City Council discussed “updates regarding (the) tree on Rapid Creek” during its July, September and October 2018 meetings, Tracie said the first time she heard anything about her tree since Higgins’ email in December 2017 was when a police officer served her with the court summons in September.

Tracie says her home is located on the opposite side of the street and about five houses down from the Inkom City Hall. She described the tree on her property as 15 feet tall and 4 feet wide with a trunk that is about 12 to 14 inches in diameter.

The tree is on the corner of her property line about 4 feet from the roadway, though no limbs or branches extend into the roadway and there is no sidewalk along the street in front of her home. Moreover, Tracie said the roadway does not bend or curve at all near her home in such a way that the tree would create visual impairments for passing motorists.

Despite the fact that no limbs or branches extend out into the roadway, the official complaint states the location of the tree is in violation of Inkom’s tree-trimming ordinances.

Inkom’s tree-trimming ordinance states, “Any owner … shall trim all trees on property owned or occupied by him, overhanging the sidewalks, streets or alleys, so that the branches thereon will not interfere with pedestrian or public travel.”

The city ordinance on trees also extends to hedges and shrubbery.

Lastly, the ordinance states it is “unlawful for any person … to willfully injure, deface, disfigure or destroy any fruit, shade or ornamental tree or shrub, or to injure, destroy, cut or pick any flower or plant growing, standing or being either on private ground or any street, parking, public park or place within the city.”

Tracie said the last paragraph in the ordinance concerned her because she interprets it as saying that if she removes the tree and it’s actually located on city property then she could be held liable for breaking the law.

“There is a city ordinance that says if I do anything to injure a tree on city property then I can get in trouble,” Tracie said. “It also states that if the tree is on their property then they can do whatever they want with it. So I requested documentation from their lawyer stating I wouldn’t be held responsible for removing the tree and have yet to hear back from them.”

It’s ironic to the Montgomery family that the same city making such a big deal about her 15-foot tree has also been a participant in the Arbor Day Foundation’s Tree City USA program for the past 19 years. The Tree City USA program is a nationwide movement that provides the framework necessary for communities to manage and expand their public trees.

Tracie said the reason she told the attorney that she thinks Inkom “is able to arbitrarily pick and choose whom they will enforce their will upon,” is because the city has failed to adequately trim the trees on its own property, which are encroaching on city sidewalks. She said the city also hasn’t taken issue with other trees on private property that extend into roadways.

“There is a great big pine tree and bushes near Helmandollar Park that are covering more than half of the sidewalk,” Tracie said. “And there are trees up and down Inkom Road that extend into the roadway and are nothing like my tree.”

Tracie claims the tree ordeal stems from the city of Inkom, specifically Mayor Jolley, retaliating against her because she has publicly criticized him for not enforcing the posted speed limit of 25 mph on Rapid Creek Road.

“I have written letters to the editor of local newspapers for the last 10 years because they added a dense housing development up the road, and ever since, people speed up and down my road at 50 mph,” Tracie said. “They don’t have any police coverage out there, and I personally called Mayor Jolley out by name in the letters. I think this is a revenge for that.”

The Montgomery family doesn’t want to remove the tree because not only does it provide a visual barrier to their home, which is elevated from the roadway, but it also provides a sound barrier to the many vehicles that speed past their home every day.

Gerrad, an Army National Guard veteran who served during the initial invasion in Iraq in 2003, says he is tired of fighting and close to submitting to Inkom’s request. His main concern is that if he appeases the city now, the city may come forward with new demands.

“I don’t like the idea of submitting to this guy because I am wondering what the next straw will be,” Gerrad said. “But at the same time, I don’t have money to do nothing but sit in a courtroom and fight with (Jolley). It’s like he wants to play this monetary game of who has the bigger bank account. I just want to see the end of this.”

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