HomeMy WebLinkAbout2022-05-12-TREE-rpt1
V.3 - May 11, 2022 1
Report on
Tree Bylaw Enforcement
and
the Use of the OpenGov DPW Tree Permit
THE TREE COMMITTEE IS CONCERNED THAT THE LEXINGTON TREE BYLAW IS NOT BEING ACCURATELY
AND UNIFORMLY ENFORCED, RESULTING IN A LOSS OF CANOPY AND A LOSS OF REVENUE TO THE
TOWN.
Members of the Tree Committee reviewed selected demolition permits issued since January 20211 and
related new construction permits. We identified issues related both to the use of the permit system and
to the enforcement of the Tree Bylaw2.
Our findings are as follows:
1) Demolition permits have been issued without an online tree permit submitted. The online permit
has been used in only a fraction of teardown projects. Since March 1, 2021 approximately 100
demolition permits have been issued; only 47 online tree permits have been created. The permit to
demolition ration has improved recently. but there are still cases where the online permit has not
been submitted.
Despite the requirement that a Tree Permit application be submitted before a demolition permit is
issued, in many cases, the “Tree Warden Review” item was indicated as complete and a demolition
permit was issued without the creation of a corresponding tree permit by the applicant.
Significantly, we found other issues associated with tree bylaw enforcement at these properties;
see, for example, the sites being developed by John Berglund in (5) below.
2) Demolition permits have been issued without certain online tree permit steps completed by the
Tree Warden. In many cases, the “Tree Warden Inspection”, “Tree Removal Fee”, “Tree Removal
Permit” steps are not completed but “Tree Warden Review” in the demolition permit is marked as
complete and the demolition permit has then been issued. In some such issues, there is then no
documentation of what the fee is and whether it has been paid (see also (6) below). Examples3:
• 5 Skyview Rd
• 303 Woburn St
• 59 Laconia St
1 When the online OpenGov (Viewpoint Cloud) DPW Tree Permit was first implemented.
2 At the time of this writing, the spreadsheet containing detailed information about individual trees required by
the Tree Bylaw to be submitted with the demolition application has not yet been implemented. For this reason,
information for this report was gleaned from the plot plans and comments in the OpenGov system records.
3 Documentation for each of the properties referenced in this report is contained in the associated .zip file
distributed with the report.
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3) Tree permit fees have been assessed incorrectly. On July 28, 2021, the Attorney General approved
Article 34 passed at Lexington 2021 Annual Town Meeting. The article increased the permit fee
from $10 to $20 per removed DBH (diameter at breast height) inch and increased the mitigation fee
from $100 to $200 for replacement inches not replanted. For the following demolition permits, the
new required values were not used:
DBH inches removed Payment Assess ed Correct Assessment
• 38 Webster Rd 68” $680 $1360
• 203 Marrett Rd 20” $200 $400
• 59 Laconia St 89” $890 $1780
• 19 Patterson Rd 67” $670 $1340
4) Additional mitigation for larger trees is not applied consistently. To calculate the “replacement
inches” on which the mitigation payment is calculated, a multiplier4 of the number of removed
inches Is applied for trees with DBH greater than or equal to 24 inches. Here are examples where no
multiplier was used:
Assessed Replacement Inches/ Correct Assessed Rep. Inches/
DBH Mitigation Payment Required Mult. Mitigation Payment Required
• 5 Munroe Rd 52” 52”/$5,200 2 (7/8/21) 104”/$10,400
48” 48”/$4,800 2 (7/8/21) 96”/$9,600
• 68 Colony Rd 24” 24”/$4,800 4 (8/20/21) 96”/ $19,200
124”/$14,800 296”/$39,200
For just these 2 sites, if no replanting was done, the additional mitigation if correctly calculated is
$24,400. And, given these figures, the developers might have chosen not to remove the trees.
5) Some applicants explicitly provide false information to the Tree Warden that has then not been
verified. There are cases in which developers have indicated to the Tree Warden that no trees were
to be removed on a given site. They then do remove trees without reporting their activities. The
Tree Warden has not questioned this and made no final visit to the property before signing off on
the certificate of occupancy. The Tree Warden has explained that he expected applicants to let him
know if more trees than were initially stated to come down were removed. However, this was not
done and appropriate fee and mitigation payments were never made resulting in significant
financial loss to the Town.
The DPW Director has committed to having the Tree Warden always make the visit before signing
off on the certificate of occupancy and to having the Tree Warden follow up with the applicants
4 After July 28, 2021 the multiplier is 4. It had been 2 since 2017.
After July 28, 2021, the mitigation required per replacement inch is $200. It had been $100 since 2017.
V.3 - May 11, 2022 3
providing the false information5. To our knowledge, this follow-up never took place. Unfortunately,
it appears that the practice is continuing.
Example Cases – Below are examples of this practice by two developers, resulting in actual/potential
losses to the Town of tens of thousands of dollars in payments.
This developer has consistently repeated this practice.
James Barr (Westview realty)
• 19 Locke Lane* closed 11/14/2019
• 198 Bedford* closed 2/21/2020
• 48 Lincoln closed 1/12/2021
• 272 Lowell St closed 4/22/2021
• 26 Volunteer Way closed 6/14/2021
• 44 Paul Revere closed 1/14/2022
• 103 School St closed 1/24/2022
* Report to the Tree Committee on Tree Bylaw Enforcement Concerns (archived with
6/10/2021 Tree Committee Minutes)
This practice seems to be actively practiced now by this developer:
John Berglund
• 526 Marrett Road
• 30 Rockville Street
• 2 Rolfe Road
We note that online Tree Permit applications have not been submitted for these 3 sites but
demolition permits were, in fact, issued.
6) There is no consistent recording of removal fee payments required/made. It is not clear how the
removal fee is paid and what controls are in place. See for example:
• 19 Patterson Rd
• 203 Marrett Rd
• 300 Bedford St
There are 2 items in the process which can record if a Tree Permit fee payment is made:
• In the demolition permit(B-XX-XXX): “Tree Fee “
• In the tree permit (DPWT-XX-X): “Tree Removal Fee”
Both are very rarely used.
5 July 10, 2021 email from DPW Director – in attachment #3 to July 21,2021 Tree Committee minutes
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7) Mitigation payment process is unclear. It is not clear how information about required mitigation
payments is consistently provided to the applicant and to the building department so it can confirm
that payment was made and it is not clear what controls are in place.
When required mitigation is stated, it is in terms of "need to replant xx 3" trees"-- not the more
precise explanation of the number of inches of required replacement planting and the required
mitigation payments if replanting does not occur.
8) Fees/mitigation payments have been waived with no explanation. Examples:
• 2 Munroe Rd
• 59 Ward St.