Unenforced Laws

When I taught, I often lamented that a student handbook was pointless if nobody was going to enforce it. In other words, it is better to have two laws that are always enforced than to have 2,000 laws that are sporadically enforced.

It is in that spirit that I bring you section 9.16.010 of the Speedway Municipal Code:

Every dead tree in excess of two and one-half inches in diameter at the base thereof and located closer to either a public street, sidewalk, alley or other public place than the height of the tree is a public nuisance.

Huh. How about that? Perhaps there is more in this part of the Muni code that will explain why the 60-year-old dead ash tree leaning over my house is still there. I bring you section 9.16.030:

Every owner of land upon which a public nuisance exists as declared in either Sections 9.16.010 or 9.16.020 shall abate the same his own expense.

OK. So my neighbor is supposed to abate the problem at his/her own expense. Fine as far as it goes. Let's keep looking at the code, shall we? How about section 9.16.050:

If any owner fails to abate a public nuisance which he is obligated to abate under either Sections 9.16.030 or 9.16.040, the town marshal or one of his deputies shall serve upon the owner a notice describing by street number or legal description the premises upon which the nuisance exists and the nature of the nuisance and demanding its immediate abatement.

I'm looking at you Speedway Police Department! Where are you? What if they're too busy to address this? Well, I bring you section 9.16.060 (in relevant part):

If any owner fails or refuses to abate a nuisance for a period of five days following the receipt of proper notice as provided in Section 9.16.050, the town attorney is authorized and directed to bring suit in any court of competent jurisdiction to enforce the abatement of the nuisance.

So, if I read this right, I have to wait on the Speedway Police Dept. to address the nuisance issue and, if they don't, I have to wait for the town attorney to bring suit to require the tree be cut down.

A few nerdy legal questions:
1. Does this preempt a common law nuisance action?
2. If this tree falls on my house, does this preempt my right of recovery?
3. If it does not preempt my right of recovery, does it implicate the Town of Speedway?
4. Do I even have standing to bring a common law nuisance action?

Aside from my nerdy legal questions, I can't help but feel that a refusal to enforce this law imposes burdens on our neighborhoods. My neighbor's dead tree puts me in a real bind. Consider:

• It is well over 80 feet tall
• It is entirely dead
• It is within a 10 feet or so of my house
• I don't believe my neighbor can afford to cut it down (the tree is not on my property)

I am left, so far as I can tell, with the following options:

a) keep rolling the dice with the safety of my family and the biggest investment I've ever made (my home); or

b) reach out to my neighbor about the dead tree, and when my neighbor indicates an inability or unwillingness to have the tree removed, I can threaten to sue my neighbor over it.

Clearly, there must be a better way.