Solar energy trumps shade in California prosecution of tree owner

Across a backyard fence: When is the environmentalism greener on the other side?

It started as a typical over-the-back-fence suburban neighborhood chat, not the kind of thing that would escalate into a criminal prosecution. Carolynn Bissett and her husband, Richard Treanor, were pulling weeds in their backyard on Benton Street here on a July day in 2001, when their neighbor Mark Vargas peeked over the fence for a chat.

Mr. Vargas said he planned to install solar panels on the trellis behind his house – meaning he needed access to sunlight. But the row of eight 10- to 25-foot redwoods along that edge of the couple's backyard would have to go – or be shortened, or perhaps replaced with smaller trees.

They asked Vargas to come discuss the matter in their backyard.

So, in a suburban odyssey symbolic of the chasm between people with different ideas of how to use nature, he got in his car and drove nearly a mile to his neighbors' front door. The two families have adjacent backyards, but in suburbia's labyrinth, there is no easy walk between them. So their front doors stand in two different cities – Sunnyvale and Santa Clara.

Perhaps that disconnect foreshadowed what would transpire. Accounts of the backyard discussion differ – whether or not Vargas offered to pay for tree removal, or who first threatened legal action – but one thing is certain: The parties haven't spoken since.

The ensuing paper chase through city ordinances, planning commissions, and permit hearings has consumed seven years and tens of thousands of dollars in legal fees, and – through California's obscure 1978 Solar Shade Control Act, which criminalizes the shading of solar panels by trees – resulted in the Santa Clara County District Attorney prosecuting Mr. Treanor and Ms. Bissett.

A judge convicted the tree owners on Dec. 10 and ordered two of the eight trees cut down.

The redwoods were planted between 1997 and 1999. The solar panels were installed in 2001 by Vargas, who moved here in 1993.

Photos from 2001 show that two of the trees didn't shade the panels for the first year after installation, but have since grown to shade more than 10 percent of the collectors between 10 a.m. and 2 p.m.

So, says Treanor who has hired an arborist to do the job, "at 9 a.m. on March 26, Mr. Perez will be here to whack our trees."

The case has gained national traction. CNN visited both households, and Vargas just turned down Jon Stewart of the Daily Show.

The fascination is predictable. It sounds like an epic struggle of values: trees versus solar; Vargas, who drives an electric car versus. Treanor and Bissett, who own a Prius. Chat rooms bristle with invective defending the trees' right to exist, and naysayers ridicule the case as a parable of green hypocrisy.

"People are very, very emotional about their trees," explains Randall Stamen, a Riverside, Calif., lawyer who specializes in tree lawsuits. "If you've planted a tree and watched it grow, you've invested an awful lot in it."

But despite the emotions the case has sparked, it fits poorly with the moral story line into which it has been shoehorned.
The now-famous electric car sits outside the Vargases's garage, sipping sunlight from the house's 128 solar panels.

The Vargas home is a scene of familial pandemonium. Three Vargas children and two playmates – ages 3 to 7 – twitter about the living room where police officer Tom Leipelt is telling Vargas's wife, Melissa, not to worry about a voice mail the family just received. As Mrs. Vargas tells it, a "crazy woman from Quebec" said, "I hope that you suffer and your family suffers."

Mr. Vargas says he has grown used to the recognition that comes with TV appearances – from supporters who say "hello" in the Safeway parking lot to silent drive-by gawkers.

He ambles into the narrow strip of yard protected from the slanting afternoon sun by the now-famous phalanx of redwoods. On the trellis several feet above his head sit 48 solar panels. These, along with 80 more on the roof, supply 100 percent of the family's electricity.

He seems content with his $70,000 investment, yet vague on any altruism behind it.

"That's a hard question," he admits. "But to be a producer of electricity, to have my own supply of energy from the sun, I think that's amazing in of itself." Beyond that, Vargas's popular image as a green crusader begins to fall flat.

"I've been labeled an environmentalist because of the solar power and the electric car," he says.

But the truth lies more in shades of gray than chlorophyll green. Sure, he drives an electric car – but he also has two SUVs and a diesel pickup. "I don't have a problem driving my gas-powered vehicles."

Vargas is a regular guy – enamored by cool technologies that do worthwhile things. The juxtaposition of solar panels and SUVs reflects a broader public appetite not for energy-saving habits, but for technical fixes: ethanol, solar, fuel cells, and hybrid autos that sometimes consume as much gas as many nonhybrids. You might call it the low-fat cheesecake approach to carbon dieting.
Bissett's family moved into the house on Benton Street in 1969, when she was 10; a walnut and cherry orchard stood where the Vargas home eventually would be built in 1992.

Bissett and Treanor moved back into her childhood home in 1995. They relandscaped the backyard: removing a nectarine tree and silk oak, and planting drought-resistant flowers and grass. They built a trellis and garden planters with recycled plastic materials. The first shoulder-height redwood arrived as a gift from a friend in 1997; it's now 40 feet tall.

"I'm planning to live here another 40 years," says Bissett, and those redwoods were "for me to grow old with." She wouldn't have guessed that they'd land her in court last September – alongside drunken drivers, purse snatchers, wife beaters, and one handcuffed man in an orange jail jumpsuit – where she'd plead innocent on the criminal charge of tree cultivation.
That there is an inevitable conflict between trees and solar power "is a false proposition," says Ralph Knowles, professor emeritus of architecture at the University of Southern California and an authority on sunlight in urban landscapes. The potential for conflict hinges on the type of tree, he says. Unlike evergreens, deciduous trees shade a yard during summer but shed their leaves in winter, providing light when solar panels are most starved of it.

The Solar Shade Control Act went unnoticed for 30 years, but since December it has come up in several lawsuits, says Stamen, the tree lawsuit specialist. "The legal system," he says, "will see [more of] these cases in the near future."

Treanor and Bissett hope to influence that. "We woke up one morning essentially violating criminal law," says Treanor.

But they learned on March 5 that they had won California State Sen. Joe Simitian's annual "There Ought to Be a Law" contest, in which he solicits legislative suggestions from constituents.

Senator Simitian plans to rework the law to provide greater protection for preexisting trees and address violations as civil disputes between citizens rather than criminal cases.