Open letter to the community: Clarification of the changes proposed to the Tree Preservation Law

April 23, 2010
by Alexandre Manz

“Read first, then complain.”

Dear neighbors and fellow residents:

A few weeks back the Town Board presented the draft of a proposed new Tree Preservation Law aimed at replacing and improving the current law.  This draft was met with a fair amount of resistance and criticism: at public hearings, in letters and emails to the Town Board and on this website there were exclamations of discontent over this “outrageous intrusion” into private property rights.

Having read every comment submitted on the topic, I have one response to most of you: read first and then complain!

The vast majority of critics took exception to the idea that the Town attempted to make them pay a fee to remove their own trees damaged by the recent storms.  This alone proves that these folks did not even bother to read the text of the proposed new law, but instead jumped blindly on the outrage bandwagon.  For all of you for whom this is your main concern let me state clearly and simply that neither the current nor the proposed new Tree Preservation Law contains any provision requiring a permit (or fee) to remove a dead tree or a tree that poses immanent danger to life or property. While I respect everyone’s right in a democratic society to express an opinion on all decisions affecting the collective good, with that right comes the duty to inform one’s self on the subject matter!  That said, if all you worry about is storm damage, you can feel free to stop reading, start your chain saws (or call your landscapers) and kick off your clean-up – no permit required.

For those of you who did read the new draft and who provided thoughtful and constructive commentary, I thank you and would like to provide an overview of the issues raised and address them as follows:

Legislative Intent.  Much has already be said and written about the purpose of the revisions to the current Tree Preservation Law, so I will touch only briefly on the main points.  In its efforts to reduce the Town’s carbon footprint and continue to be a leader in environmental preservation, the Town Board tasked the Conservation Board with reviewing and, where necessary, updating the current law to bring it in line with modern standards.  Carbon sequestration, energy conservation, reduction of impervious surfaces, storm water management and ground water protection (as a reminder, New Castle is located both in the Hudson River Estuary Watershed and the Croton Watershed) are just a few of the many areas directly affected by active tree management and, therefore, driving forces behind the decision to revise our local tree legislation.

Scope.  One of the major changes resulting from the new Tree Preservation Law is the reduction of the size (as measured in diameter at breast height, or “dbh”, i.e. the diameter of the tree at 4.5 feet above ground) of what is considered a tree from previously 8 to 4 inches.  Many of you argue that 4 inches of woody structure amount to a mere twig not worthy of regulation, but I urge you to consider that while a 4-inch tree presents no obstacle to a chain saw, the average native tree grows at a rate of about 1 cm (0.4 inches) in diameter per year, meaning it takes between 5-10 years for a tree to reach the size that puts it within the purview of the new law.  What’s more, a quick search on Wikipedia reveals that 10 cm (3.9 inches) diameter is a common measure of what constitutes a tree.  I note, also, that the new law regulates trees of 4-inch dbh only within the “Regulated Landscape Buffer,” where the primary (overriding) concern is to maintain natural screening to neighboring properties; elsewhere on the property the new law takes hold with respect to trees with a dbh of 8 inches.  I would like to repeat at this juncture, that – as is the case with the existing law – the new law does not require a permit for the removal of trees that are dead or otherwise pose a threat to the property.

Tree Maintenance/Pruning. Numerous comments were submitted regarding the distinction between tree removal and regular pruning.  I would like to make clear that the intent of the new draft is certainly not to interfere in any way with necessary and desired regular pruning and other tree maintenance.  On the contrary, the Town encourages all residents to engage in regular pruning and management of their trees, as this helps reduce wind and snow-related tree damage.  As part of its review of the draft law, the Conservation Board will be paying specific attention to any definitions or provisions that may have (or appear to have) the unintended consequence of regulating tree maintenance.

Property Rights.  As is the case with respect to any regulation that affects the ability of owners to freely exercise their property rights, many of you deemed the new law to be an untenable intrusion into owners’ rights to do as they wish with the trees on their property.  I reiterate that the main focus of the new law (as is the case with the current one) is to protect the interests of neighbors and the Town as a whole with respect to trees on any given property.  While it is (and should be) your right to remove a tree on your property, should you be permitted to remove natural screening from the property lines without consulting your neighbor who lives on the other side of that “green fence”?  Would you approve of your neighbor doing the same without consulting you?  The notice provisions included in the new law are aimed at ensuring that there is dialogue between neighbors with respect to trees located in areas of common interest. 

Furthermore, while it should be within the rights of property owners to landscape their yard as they see fit, excessive tree removal results in soil erosion, increased ground water runoff (i.e. flooding on neighboring properties) and a host of other negative impacts on others and should, therefore, be undertaken only with due caution.  The new law does not seek to prohibit cutting, it seeks to maintain the tree inventory in Town by requiring that trees which have been removed be replaced, on site or through off-site mitigation. 

Permit Fee. This is probably the most controversial point and, as already mentioned, was the topic of the vast majority of complaints about the new law.  It is all the more ironic, because the fee has absolutely nothing to do with the proposed new law (or the current one for that matter).  The permit fee was introduced by decision of the Town Board in January 2010 to mitigate costs as part of the budget process.  Nowhere in the current or new law is there a proviso for a fee – quite to the contrary: in its drafting of the new law, the Conservation Board made every effort to avoid any cost to the applicant in connection with the permission process.  What’s more, the Conservation Board has appealed to the Town Board to repeal the permit fee, as it feels that the Tree Preservation law is not intended to be a revenue generator.

In conclusion, I would like to note that the Town Board and the Conservation Board have taken note of all the constructive suggestions received with respect to the new Tree Preservation law and the Conservation Board will be reviewing the draft and revising it to take them into account.  I hope that the result will be a draft law that will address your concerns while ensuring that our Town will continue to be the oasis of green that attracted many of us in the first place.

Alexandre Manz is the chairman of the New Castle Conservation Board.  A native of Switzerland, he is a ten year resident of Chappaqua, nature enthusiast and owner of numerous chain saws.