HomeMy WebLinkAbout2021-10-14-TREE-rpt Tree Bylaw Enforcement Findings
While studying 2019 and 2020 tree bylaw activity to better craft for optimal implementation the 2021 ATM articles amending Tree
Bylaw, we discovered
• Sites where builders claimed no trees were to be removed were signed off for certificate of occupancy without a site visit to confirm
that claim was true.
• Mitigation provision of bylaw not applied to sites where trees were removed prior to demolition permit application.
• Builders were not required to pay mitigation fees that reflected the doubling of replacement inches instituted in 2017 for trees larger
than or equal to 24" DBH.
• Irregular and infrequent enforcement of protection provisions for trees remaining on site.
• The Town's online tree removal permitting system does not include in its calculations the extra mitigation required for large trees,or
the extra credit given for replanting large shade tree species.
RECEIVED
As a result,in 2019 and the first half of 2020 alone 2021 23 I114ov,2A8 11311111
TOWN CLERK
• We identified 481"of removed protected trees that were unmitigated. LEXINGTON MA
• The incentives to save large trees and to replant with large tree species were reduced.
• Some remaining large trees that had not been properly protected from damage during construction later went into decline or died and
were removed.
• The Town did not collect$3,480 in potential permit fees and$46,300 in payments to the Tree Fund from just 3 sites.
Conversations between the Tree Committee and the DPW have led to
• A commitment by DPW to remedy lack of enforcement
• Continued concerns by Tree Committee about pace of implementation of existing bylaw and new bylaw changes
September 22,2021
Attachment 1
Report to the Tree Committee on Tree Bylaw Enforcement Concerns
In the course of developing amendments to the Tree Bylaw for 2021 Annual Town Meeting, I
reviewed tree removals on construction sites covered by the Tree Bylaw for 2019 and 2020.
This research along with follow-up conversations with the Tree Warden Chris Filadoro brought
to light some areas of concern about current enforcement of the Tree Bylaw.
• For certain locations I found discrepancies between what is shown on plot plans and
reported in the Tree Warden's spreadsheet summarizing bylaw activity and what is
observed when looking at the sites. Appendix A documents in detail my observations
for the following 5 sites that fell under the bylaw in 2019-2020.
1. 19 Locke Lane
2. 198 Bedford Street
3. 193 Bedford Street
4. 16 Grapevine Road
5. 82 Spring Street(3 Underwood)
In four of these cases (1-4)the bylaw activity spreadsheet stated that no protected trees
were removed but it is clear that protected trees, including some large ones, were
removed. In another (5), it appears that a protected 30" oak was removed that was not
accounted for. The red circles on the plot plans were added by me, indicating the
protected trees that were removed but not reported.
The current bylaw does not mandate reporting of activities (tree removals,protection
measures for remaining trees, mitigation plantings or permit or mitigation fees paid) at
sites where the Tree Bylaw applies. It is very difficult to trace what actually occurred,
and it is possible that what appears to be lack of enforcement is simply lack of
documentation. However, if the removed trees were in fact not accounted for during
bylaw site visits, they represent underpayments of at least$4,240 in permit fees and
$46,300 to the Tree Fund. DPW Director Dave Pinsonneault has stated that the DPW
will not look into what happened at these sites.
• The Tree Warden has stated that that when a large (24" DBH or greater)protected tree is
removed, he asks the builder to replant from the Large Shade Tree list but does not ask
for double payment to the Tree Fund if the tree is not fully mitigated by replanting as
specified in §120-8 C.
• The current Viewpoint Cloud online permitting application for tree removal permits has
no provision for the extra mitigation required for large trees that are removed, nor for the
extra credit given for replanting using large shade tree species.
• The Tree Warden does not require as a routine matter that a builder take the protection
measures described in §120-8 C and Section VIIIB in the Tree Management Manual for
trees left on the site. He has stated that he speaks to builders if there is a complaint that
trees are being harmed; he has discretion over whether remedial or punitive action is
taken if the builder still does not comply with the bylaw. Photos taken this spring of
some sites where setback trees are not being properly protected are shown in Appendix
B.
1
• In a prior Tree Committee meeting we discussed the apparent shortfall of tree removal
permit fees collected from 2017-2020, when the inches of protected trees removed
reported by the Tree Warden was compared to the amounts reported received by the
Finance Office. DPW Director Pinsonneault worked with the Finance Office to
investigate and found that a single check or credit card deposit to the Town's general
funds may be made in payment of multiple fees by a builder, without necessarily
itemizing those payments. He stated that he is confident that fees are being collected and
acknowledges that better tracking may be a reasonable goal in the future.
Implementation of the amendments to the Tree Bylaw passed at spring 2021 Annual Town
Meeting should help address some of the issues noted here. The Tree Committee expects to
work with the DPW and the IT Department to ensure that the Viewpoint Cloud permit
application captures both the replacement inch calculation for large trees and the large shade tree
planting credit. The post-construction spreadsheet to be provided by builders that lists all
removed and newly planted trees will facilitate uniform compliance with the bylaw and more
accurate and accessible records of bylaw activity. Currently I am not confident that trees
removed under the bylaw are adequately mitigated, and I am quite sure that trees remaining on
the site are often not adequately protected from damage.
Respectfully submitted,
Nancy Sofen
June 9, 2021
2
APPENDIX A: BYLAW ACTIVITY DISCREPANCIES
1: 19 Locke Lane (by Westview Homes)
Plot plan submitted February 2019 shows no trees marked
for removal, and the Tree Warden's 2019 summary
spreadsheet states no trees were removed at this address.
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No trees were marked as hazards, and it appears that the
following protected trees were removed: 1@30" (= 60
replacement inches), 1@22", 3@18", 1@14", 2@12",
1@10", 1@8", 5@6" for a total of 222".
Google street view shows that 9 new trees were planted.
One is a spruce, four are Callery Pear, one is a small
ornamental Japanese Maple and the others are blocked
from view by a fence. Assuming those 3 are large shade
tree species, that totals 39 inches of mitigation planting.
Proper mitigation would have required further payment of
at least $18,300 to the Tree Fund and there should have
been application fees of$1,920 paid to the town.
3
2: 198 Bedford Street (by Westview Homes)
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Plot plan submitted February 2019 shows no trees marked
for removal, and the Tree Warden's 2019-2020 summary
spreadsheet states no trees were removed at this address.
The property sold in July 2020 for$1.9M.
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No trees were marked as hazards, and the following
protected trees were removed: 1@40"(80
replacement inches), 3@24"(48 replacement inches
each), 1@14"for a total of 238 replacement inches.
Three trees from the large shade tree list were
planted,for 18" of mitigation planting, leaving
;( � f $22,000 owed to the Tree Fund in mitigation
payment and $1,260 owed to the town in permit
application fees.
The remaining 24" oak has since been removed, and
in spring 2021 the 40" oak is exhibiting some decline.
Were protection measures taken?
4
3: 193 Bedford Street (Lexington Development Associates LLC)
Plot plan submitted May 2019 shows no trees marked
for removal, and the Tree Warden's 2019-2020 " --
summary spreadsheet states no trees were removed at
this address. The home was listed for sale in November a
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2020 for$1.45M.
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No trees were marked as hazards, and the lot was "r .m at
cleared with the following protected trees removed:
1@24"(48 replacement inches), 1@21", 1@14"1 1@10"1
1@7" for a total of 100 replacement inches. �aons�' r k
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There appear to be several new trees planted, including
large shade tree species. It is not clear whether
mitigation was complete through replanting. Permit
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application fees owed to the town would be $760.
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4: 16 Grapevine Avenue (by Adish Properties LLC)
Plot plan submitted in 2019 shows no trees marked for
removal, and the Tree Warden's 2019-2020 summary
spreadsheet states no trees were removed at this address.
The property sold in January 2021 for$1.5M.
No trees were marked as hazards, and it appears that 2 or 3
protected trees (whose sizes are not given on the plot plan)
were removed.
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5: 82 Spring Street (3 Underwood) (by Seaver Properties LLC)
r^ " The builder of this house, which sold for$2.2M in
September 2020, did a very nice job of preserving several
large shade trees. Notations on the June 2019 plot plan
and in the Tree Warden's summary spreadsheet state that
50" of protected trees were removed. One dead tree was
marked on the plot plan.
m A 30" oak (60 replacement inches) marked TBR on the
plot plan was in fact removed. It was not labeled a
hazard nor was it included in the total inches to be
mitigated. Removal of this protected tree would have
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required $300 in application fees and mitigation of 60" by
replanting or payment to the Tree Fund of$6,000.
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APPENDIX B: TREES IN SETBACK LACKING PROTECTION
FROM DAMAGE DURING CONSTRUCTION
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Attachment 2
Gmail-tree questions https://mail.google.com/mail/u/0?ik=4888d66222&view=pt&search=all...
Ill Gerry Paul <gerrypaul01@gmail.com>
......................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................
tree questions
-----------------------------------------------------------------------------------------------------------------------------------------
David Pinsonneault<dpinsonneault@lexingtonma.gov> Thu, Jun 17, 2021 at 2:22 PM
To: Nancy Sofen <nsofen@gmail.com>
Cc: Gerald Paul <gerrypaul01 @gmail.com>, Marc Valenti <mvalenti@lexingtonma.gov>, Christopher Filadoro
<cfiladoro@lexingtonma.gov>
Dear Nancy,
Here are the responses that we have.
16 Grapevine: The plot plan identifies three locations without DBH, these were large shrubs that were in the setback
with nothing larger than 6" removed.
198 Bedford Street: The builder claims that there were a few trees that were in very poor condition that he removed.
Chris did not have a chance to deem them hazards or not hazards and is following up with the builder with regards to
next steps.
193-195 Bedford Street: This project has not been closed out yet. There was an additional site visit that was done
after the first one that approved the removal of a dead and hazardous tree that was not noted on the plot plan. Chris
is working with the builder on next steps.
3 Underwood Ave: This property was originally submitted as a Spring Street address and the side setback was only
15' and did not capture the large oak tree at that time. Chris has spoken with the builder and they are aware that they
will need to pay additional fees for both the removal and mitigation of this tree.
19 Locke Lane: The Builder noted that there were no trees being removed at the time of demo and says that the
owner wanted them removed after the house was removed and the builder did not check back in with the Town.
When there are no trees agreed to for removal we do not do a follow up site visit as there is no planting or mitigation
requirements. Chris has reached out to the builder and they are aware that they will need to pay additional fees for
both the removal and mitigation of the trees.
Please contact me with any questions or concerns. Thank you.
David
1 of 2 7/18/2021, 11:15 AM
Gmail-tree questions https://mail.google.com/mail/u/0?ik=4888d66222&view=pt&search=all...
David 1..Jimanmaua, esJ:.t, e-nfjqjn
DPW Director
Lexington DPW
Samuel Hadley Public Services Building
I-exiiingtoin, IMA 02420
Ph: '781-274-8314
Fax: 781-274-8392
m �
ACCRIEDITED
AGENCY
2 of 2 7/18/2021, 11:15 AM
Attachment 3
Gmail-Fwd: Tree questions https://mail.google.com/mail/u/0?ik=4888d66222&view=pt&search=in...
Follow up questions, responses and clarifications
(Follow up questions in black, Dave P. initial responses in blue, Nancy's clarifications in green.
---------- Forwarded message---------
From: Nancy Sofen <nsa:nte;rn@giinaiill.a;a:nir°n>
Date: Sat, Jul 10, 2021 at 10:49 AM
Subject: Re: Tree questions
To: David Pinsonneault<alpunsa:nnneau.ullt llexiingta:nnir°na.ga:nv>
Cc: Christopher Filadoro <a;tillaala:nir(:)@I�exiirngda:nrnir°na.ga:nv>, Marc Valenti <ir°nvalleinto@llexiirngda:nrnir°na.ga:nv>, Gerald Paul
<geiriryjp@I t.n.edu.n>, Mark Connor<ir°nairlk@(,(:)nna:niraira;hiite(,tu.uire.coiin>
Hi Dave,
My clarifications are in green. We would appreciate your responses by Wednesday morning so that we can discuss
this at Thursday's Tree Committee meeting.
Responses to your questions:
1. Please clarify the sequence of events relative to the trees in question at 198
Bedford Street. The site was inspected before the permit was issued and at that time
there were no trees being requested for removal° This property was signed off
electronically because there were no trees to be replanted. Since theBylaw's inception
sites that have no trees being removed have not been revisited° Given that there was
an issue here and in order to not have this issue reoccur Chris will be revisiting all sites
prior to a COto ensure proper adherence to the Bylaw.
2. Was the final sign off prior to issuance of the Certificate of Occupancy for 19 Locke
Lane and 198 Bedford Street performed by the Tree Warden? These properties were
signed off on by the tree warden and were not given a physical final inspection because
there were no trees to be replanted. Since theBylaw's inception sites that have no
trees being removed have not been revisited° Given that there was an issue here and
in order to not have this issue reoccur Chris will be revisiting all sites prior to a COto
ensure proper adherence to the Bylaw.
3. Why has the replacement inch provision of the bylaw not been enforced fully since
its adoption in 2017? Please clarify this question. .Phe Ibylaw as wirlittcirn Uses e table
that defliirncs "incl llaceliTieint llincllhcs" for tirccs 24" air d Ileirgcir as 2x the I['11:11 1 of the tircc,
air d lIt's these ircpllacellTieint llincllhcs tAhat. have to be iIT'llitligeted, Oirn Clhirlis's tircc Ibylaw
activity slpireadsllicct, the girccirn sllhcct, air d oirn tAhc Iplot Iplains, Clhirlis coirnslistcirntlly has
celICLAlleted the 111u.ATIbeir of llincllhcs to be iIT'llitligeted wlitll'IUA ircgeird for wllhctlheir tAhc tirccs
eirc 24" oir Ileirgcir. Why have the edditlioirnell ircpllacellTieint llincllics for tirccs 24."['11:11 11 11 oir
gircetcirsnot. Ibeein takein liirnto eccoUll'It?
4. Why has the protection of remaining trees not been enforced? When we see or
have been made aware of an issue then we use the Tree Bylaw language to enforce
2 of 3 7/26/2021, 4:26 PM
Gmail-Fwd: Tree questions https://mail.google.com/mail/u/0?ik=4888d66222&view=pt&search=in...
this, since the bylaw has begun we have had very few issues reported about
protection° Moving forward we will ensure trees in construction areas will have proper
tree protection. "Pheire acre CUirireirnt IlDu.AlIdiing sites that .Firee t.011TUIT'llittee uTieuT'Ibeirs have
expressed c0inceirins all OLA pirotectlioin uT'ieasUires, aind (Ihirlis°s ireslpoinse has Ibeein 'I've
sIpokein t0 tAhe IlDu.AlIdeir", Ilia a u° LAT'Ibeir 0f cases tlheire has Ibeein u o ireuT'ledy for the
SitUatli0irn. Why was tlheire a°10t 1111TUI iediate COIITIlpllliaince, aind have uT'ieasUires descirlilbed llin
120.1 .II:::: Ibeein talkeirn?
5. How will the current Tree Bylaw be enforced? The bylaw is being enforced and will
continue to be. tree W:t aind #4,
6. Will you agree to transparency and reporting of 2021 bylaw enforcement? Please
clarify this question. V, intlill tAhe newliewp0liint. su.Alplpoirt is liuT'IlplleuTieinted, what
linfoinTiatlioin all oUt. 2021 Ibylaw activity will the [11:1W Ipirovlide t0 the .Firee
t.011TUIT'llittee? ..Phis could 11111CIlLAde tiree ireuTlova11 alplplllicatlioins, plot plains, gireein slheets,
uT1011°ItAhlly updated Ibylaw activity slpireadslheets, tiree Ipirotectlioin peinalltlies Ilevied, aind
alplplllicatlioin fees aind IT'llitligatlioin payuTleint.s chairged,
Nancy
3 of 3 7/26/2021, 4:26 PM
Attachment 4
Gmail-(no subject) https://mail.google.coin/maiUu/0?ik=4888d66222&view=pt&search=dra...
Nancy SOfen ansofein@gmai!l.coim> Wed,Aug 25,4:20 PM
to David, Marc, Chris, Gerald, Mark,James, pat, Gloria, Martha, Mark
Dear Tree Committee members and DPW staff,
So that we don't have to go through meeting minutes to find the most recent answers to questions asked about Tree Bylaw enforcement
practices, I've written them here(in red)with the questions. Please let me know if what I recorded differs from what you recall from the
August 12th Tree Committee meeting.
Thanks,
Nancy
BLACK TEXT IS EMAIL SENT ON JULY 23,2021. RED TFX 1 REFLLL 1.5 VLRBAL RL SPONSLS t Rr7M DAVE PINSO NNLAULTAI AUGUS 1 12,.202.1 1 R F
COMMI'FT1-F ML`FTING, BLUE TEXT NOTES UPDATES FOLLOWING SEPTEMBER 9,2021 TREE COMMITTEE MEETING AND SINCE.
The Tree Committee is pleased by the progress that we see in clarifying procedures used in administering the Tree Bylaw. We expect that
the enforcement provisions related to large trees and to protection for remaining trees will apply to all currently open building permits,not just
new permits going forward. Is this your plan? Yes.
We would like some clarification of your statement that when trees 24"or larger were removed"Chris has been using the replacement inches
without doubling based on the commitment of the builder to replant from the approved list which gives credits for doing so." From 2019 to the
present,has Chris confirmed that all inches of these large trees were mitigated by sufficient replanting from the large shade tree list? In
cases where there was not sufficient replanting,did Chris take the requirement that unplanted inches of these large trees be doubled into
account when calculating the mitigation payments owed to the Tree Fund? Chris Ilhinks tltcat in mosl,cases Iplanlfirrt.l ire;cpuire.rriomts we areaerne l[
Wo caro award of sora o siIle^`s whoro, thaall is aero' so: Willhoull spodfir dal a Ilo corafirrnu Illhat suffin ail,ropllaurlling ualrm ays(look placo oir hall doubllod
nitigaalion Il:nayinont^s wore a°nado to tlho"lf'ree IFund,sero asrsur o tlho aanswor to tlho, r{umilia'n posod is no,
We are hopeful that requiring protection measures for remaining trees from the beginning will go smoothly;when it doesn't,we encourage
Chris to act quickly with measures that will both protect the trees and communicate to builders that the town takes this very seriously. The
threat of greater costs,or of having a CO held up until an arborist is hired to assess and/or treat any harm to a tree,could be a powerful
incentive to comply. Are there plans to take these steps if necessary? l heSs:,'rsle Ilss,, as wedlll as invoking IIhP"esxisfring tree bylaw option Uhal[tete
tt.awn may hire,an arborist[uvltoseW clhsairge.rs will be Ilsillllec.l Via Hie,«.awn(,r/build(,r lO eWursurea I11hal trees Ileft on Ifllsa.. .-Dille,Will .>uirvive,and remain heallhy,
will Ise(3crosidorod. New violations have been noted and sent to Chris,who has spoken to the builders. In one case the site is still in violation
two weeks later.
Please have Chris send an up-to-date spreadsheet of bylaw activity,including updates to those from 2019 and 2020 that have changed. The
last such spreadsheet that we received went through December 2020. This spareadr>Ihooll willl Ilae:provide.rf Ilay nur noxll uneolling on Sop lorrollbor
9r'. The spreadsheet was provided on Friday, Sept. 10 for new 2021 sites only.
Last,we request a review of all bylaw sites whose permits were open during any part of 2021 for compliance with the bylaw. Such review is
particularly important for those sites on which the builder initially claimed no trees were to be removed and so therefore may not have been
revisited before the CO was issued,and for sites where large trees were removed. Claris with review all bylaw suras a:allaen daaring any parl of
2021 to unako rsu,ro lhaat tlhe Ihnyllaavr was follllaaasod, and dor„r,unont any ai which t1horcr unsay Ihavo Ilaoon rtr,o sfions 't"hirs will Jae availlall:allo, cat our noxi
mooting. Marc indicated that Chris has been too busy to meet the committed Sept 9th date. We requested that he tell us what sites he has
reviewed so far,what he has found,and when he will complete the review
2 of 2 9/22/2021,3:56 PM