Legal Opinion: City Can’t Order Tree Preservation

THomas MacMillan Photo The city can’t forbid private property owners from cutting down trees. But it can tighten its zoning laws regarding excavation.

That was the assessment of City Plan Director Karyn Gilvarg, expressed at Wednesday evening’s monthly meeting of the City Plan Commission in City Hall.

Gilvarg was responding to a proposal by Morris Cove Alder Sal DeCola, who is calling for a public hearing on the feasibility of requiring developers to obtain city approval before “stripping their property of trees.”

DeCola was inspired by the plight of 203 Russell St. (pictured) in Fair Haven Heights, near where his mother lives. That site has been denuded of trees since a developer aborted work there after receiving a cease-and-desist letter from the city for not following zoning regulations. Neighbors have complained about the removal of the property’s trees.

The City Plan Commission voted unanimously Wednesday evening to recommend that the Board of Alders hold the hearing DeCola has requested.

However, Gilvarg said, the city’s corporation counsel determined that the city has no power over trees on private property.

“There are areas where our ordinances are deficient,” Gilvarg said.

“Ordinance additions or amendments concerning site work, excavation, fill and grading may help if they are well researched and grounded in existing state statute and city code, backed up by new enforcement and meaningful penalties for late filing infractions,” Gilvarg wrote in an advisory report to the commission.

The city already has difficulty enforcing the zoning regulations already on the books, Gilvarg cautioned.

“I think the board should go ahead and hold a hearing,” she said. “There’s just no public authority over trees” on private property.

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