HomeMy WebLinkAbout2023-06-08-TREE-rpt2May 15, 2023 1
Irregularities in Collection of Tree Bylaw Fees
and Mitigation Payments
In certain circumstances the Lexington Tree Bylaw requires the payment of tree removal fees
and mitigation payments. This report documents irregularities in the collection of these
payments that have resulted in loss of significant monies to the Town. Equally important,
awareness that fees may not be collected reduces the incentive for developers to retain trees.
Concerns about the controls concerning these payments were also documented in an earlier
report1.
1. Types of payments and how they are collected
Tree removal permit fee – Requirements for these payments can optionally be entered by the
Tree Warden in the Town’s online permitting system, Viewpoint Cloud. However, this
capability is rarely used for these tree removal fees. The fees can be paid with a check delivered
to the Building Department or on-line with a credit card or e-check. When a payment is made by
the property owner it is recorded in Viewpoint Cloud. Authorized users of Viewpoint Cloud can
create reports listing these payments
Tree mitigation payments – These payments can only be made through the Department of Public
Works and only by check. Checks are brought by the property owner (or their representative)
either to
• The DPW front desk in which case the DPW front desk attendant, if requested, provides a
paper receipt, and sends the tree warden an email notifying them of the payment.
• The tree warden, who then delivers the checks to the DPW front desk.
All checks received are sent to the Town Finance Department weekly with a printed "cash
turnover sheet" created through an Excel spreadsheet. The printed sheet contains the name
and number on the check. The address of the property for which the check is provided is
usually noted in the excel spreadsheet and is sometimes present on the printed sheet.
While there is a capability to record the need for a payment in the online Viewpoint Cloud Tree
Removal Permit, it is almost never used. There appears to be no capability to formally record
the payment in the Viewpoint Cloud System.
1Use of Open Gov and Bylaw enforcement – Sections 6 and 7
https://records.lexingtonma.gov/WebLink/0/doc/2510719/Page1.aspx
May 15, 2023 2
2. Specification of required payments
The tree warden determines a final value for the permit fee and required mitigation payment
based on a visit to the site shortly before a certificate of occupancy is to be issued. There are
several places where payments that are required are specified or can be inferred.
• Tree warden bylaw activity spreadsheet - this spreadsheet has been used by the tree
warden since the inception of the bylaw2. It lists the number of trees removed and the
number of DBH (diameter at breast height) inches removed. The actual number of
inches for which a fee or mitigation payment must be made may differ from the
inches removed because:
o Trees may have been planted to reduce the required mitigation payment
o A removed tree may have had a diameter equal or greater than 24 DBH inches
in which case the diameter is multiplied by 2 or 4 (after July 2017 or July
2021 respectively) to obtain the inches to be mitigated
o Removal of fewer or additional trees may have made after an entry in the
spreadsheet is created but the entry has not been updated.
• The Tree Removal Permit created in the online system. However, in many cases this
is not filled in by the applicant or tree warden (or is filled in incorrectly).
• Comments in records in the Viewpoint Cloud system – this is not done consistently
There is now no place where fee and mitigation payments that are required are consistently and
reliably recorded and no place where mitigation plantings are consistently recorded. However,
we employ whatever data is available to document our findings with awareness of the caveats
above.
This report does not address the issue of whether required payments have been determined
properly. That issue is addressed in two earlier reports1,3. Here we take the assessments at face
value to determine if the required payments have been collected.
The issue of whether fee payments have been properly collected has been raised before.3 The
DPW director has stated that fee payments may have been combined with other types of permits
and thus were not documented. This may have been the case before the use of Viewpoint Cloud
to record fee payments individually in late 2019, but should not be the case after that.
3. Who confirms that payments have been made so that demolition permits and
certificates of occupancy may be issued?
• Issuance of demolition permit - The tree warden when they declare complete the “Tree
Warden Review” item in the demolition permit checklist in Viewpoint Cloud.
• Issuance of certificate of occupancy - The tree warden when they declare complete the
“Tree Warden Notification” item in the new construction permit checklist in Viewpoint
Clout.
2 Entries in this spreadsheet were no longer made after October 14, 2021.
3 Report to the Tree Committee on Bylaw Enforcement Concerns
https://records.lexingtonma.gov/WebLink/0,0,0,0/doc/2487316/Page1.aspx
May 15, 2023 3
4. Findings
For properties for which a certificate of occupancy was issued over the last 3 years, we identified
those for which there was data to indicate that permit fee and/or mitigation payments had not
been properly collected.
Tree Removal Permit Fees – Our findings are in Table 1. Criteria included:
• There was a non-zero entry in the tree warden spreadsheet for “inches removed” or in the tree
permit granted but no record of a fee payment or
• A mitigation payment was made but not a fee payment.
Of the approximately 85 properties with tree removals, we found 35 for which the fee was not
collected.
Mitigation Payments - Our findings are in Table 2 and 3. Determining properties to be included
in Table 2 was difficult because there is no consistent place where required payments are
recorded. Rather to infer a required payment one must know the
• Replacement inches4 required
• The number of trees planted
• The species of trees planted, based on which a potential credit multiplier5 is applied
all of which are not recorded consistently or reliably.
Given this, entries in the Table 2 are limited mostly to properties which have both of the
following characteristics:
• Are corner lots with no (or low) fences so that any mitigation planting could be seen
without entering the property
• Have a moderate or large mitigation requirement and a small number of trees planted as
mitigation so that, any mitigation plantings could not have eliminated the need for a
mitigation payment.
or
• Mitigation planting has been recorded in Viewpoint Cloud
If appropriate mitigation planting data were available, there may be more properties that should
be in Table 2. In Table 3 we list such properties for which no mitigation payments have been
collected and are requesting information concerning possible mitigation planting to determine if
they are appropriate for inclusion in Table 2.
4 Required mitigation is based on the concept of “replacement inch” that for trees with 24” DBH or greater is
calculated as a multiple of the measured DBH.
5 Planting of certain species of large shade trees results in credit being given for a multiple of the actual DBH of the
trees planted.
May 15, 2023 4
Finally, Table 4 includes properties for which
• plot plans were submitted that showed protected trees to be removed and/or
• post-build surveys were submitted that showed trees had been removed
either of which should have triggered a determination whether a permit fee and/or mitigation was
required. Although trees planned for removal and sometimes additional trees were removed (in
many cases large trees with a significant number of DBH inches), information about DBH inches
removed and replacement inches has not been recorded. No assessments for tree permit fees or
mitigation were made and neither a tree permit fee nor a mitigation payment was collected.
Disclaimer: The analysis here is inexact. As explained above, available data is incomplete and,
in some cases, inconsistent. Thus, some of the entries in the tables are almost certainly “false
positives” for which corrections are welcome. However, there are enough conclusive cases that
serious attention to this matter is warranted.
5. Summary
There are properties governed by the Lexington Tree Bylaw for which required payments of
significant value have not been collected. This has resulted not only in lost revenue but in loss
of tree canopy which might have been avoided if it was understood by developers that assessed
payments would be required.
Respectfully submitted,
Gerry Paul
May 15, 2023 5
6 Before late 2019 Viewpoint Cloud did not distinguish payment types; Tree Removal fee payments may have been
combined with other types of payments (e.g., demolition, new construction, etc.). For this reason, properti es for
which a demolition or new construction permit was submitted before January 1, 2020 were not considered for this
table
Table 1. Tree Removal Permit Fee Not Collected6
Property Applicant Permit
Submitted
Cert. of
Occupancy
Issued
DBH Inches
Removed
267 Lowell James Barr 2/22/2022 1/24/2023 24
10 Loring Rd Finnegan 10/4/2021 6/10/2022 69
32 Outlook Finnegan 8/25/2021 8/24/2022 16
10 Tyler Joseph Ciampa 8/24/2021 11/14/2022 37
30 Rockville* John Berglund 7/27/2021 6/10/2022 60
2 Munroe* Ronald Gold 7/19/2021 1/13/2023 36
68 Colony* Dalfior Develop. 7/2/2021 5/27/2022 75
69 Pleasant Todd Cataldo 4/26/2021 In lot setback
573 Marrett Bernard Osgood 4/23/2021 9/22/2022 52
9 Fair Oaks Dr Jing Ma 4/6/2021 8/25/2022 66
7 Stevens Ibrahim Algur 3/25/2021 1/25/2022 27
7 Bates W. Eycleshymer 2/27/2021 12/28/2021 40
21 Wheeler Joseph Gelormini 2/1/2021 12/6/2021 69
18 Blueberry Trina Murphy 1/21/2021 1/28/2022 55
31 Fairlawn Trina Murphy 1/21/2021 8/15/2022 20
3 Wheeler Finnegan 1/11/2021 11/17/2021 75
10 Constitution John Hills 1/8/2021 10/12/2021 6
19 Hudson Daniel Moeller 12/9/2020 12/21/2021 58
37 Woodland Finnegan 11/2/2020 11/22/2021 100
19 Hastings Richard Phelan 10/27/2020 1/4/2023 67
7 Fulton Doug Orr 10/2/2020 3/21/2022 48
25 Flintlock Jason Brickman 9/30/2020 6/24/2021 57
8 Oxford John Berglund 9/29/2020 10/18/2021 57
10 Carriage Robert Burge 9/16/2020 3/13/2023 117
17 Fairlawn Fernando Dalfior 9/11/2020 6/14/21 27
11 Norton Jason Brickman 9/1/2020 7/29/2021 75
371 Marrett Joshua Michalak 7/30/2020 11/29/2021 84
32 Middle Macro Construct. 7/20/2020 1/17/2022 12
180 Lincoln Finnegan 7/14/2020 3/29/2021 36
28 Normandy Finnegan 7/6/2020 6/15/21 114
378 Woburn C. Defrancesco 6/17/2020 8/25/2021 24
127 North Jason Chui 6/9/2020 2/15/2023 27
39 Woodcliffe Daniel Moeller 2/10/2020 12/2/2020 24
25 Wyman Joshua Kelly 2/10/2020 12/20/2021 15
May 15, 2023 6
Table 2. Mitigation Not Collected
Property Applicant Certificate
of
Occupancy
Issued
DBH Inches
Removed
Notes/Other Issues
10 Carriage Robert Burge 3/13/2023 117
303 Woburn Andrew Burns 3/13/2023 25
59 Laconia Walter Scott 7/7/2022 53 only 30” mitigated
68 Colony Dalfior Develop. 5/27/2022 75
only 45” mitigated
no multiplier for 24”
25 Oxbow Seaver 1/20/2022 27 all removed trees not
accounted for
8 Oxford John Berglund 10/18/2021 57
22 Washington Joseph Ciampa 3/25/2021 38
114 Bow Paul Sramowicz 9/20/2020 40
3 Underwood Seaver 7/13/2020 50
7 Graham David Winnick 3/10/2020 62 only 27” mitigated
2 Cushing Erika Hueneburg 1/31/2020 58 all removed trees not
accounted for
546 Lowell Joseph
Gelormini
1/27/2020 98 all removed trees not
accounted for
May 15, 2023 7
Table 3. Mitigation Not Collected but Planting Information Needed to Determine if
Mitigation Payment Required
Address Applicant Certificate of
Occupancy
Issued
DBH Inches
Removed
Notes/Other Issues
65 Locust Finnegan 3/10/2023 84 all removed trees not
accounted for
368 Mass C. DeFrancesco 10/28/2022 16 all removed trees not
accounted for
19 Hudson Daniel Moeller 12/21/2021 58
54 Robinson Joel Werrrick 11/26/2021 50 $1500 of $5000 paid
No multiplier for trees ≥ 24”
55 Wood W. Eycleshymer 10/14/2021 68
10 Constitution John Hills 10/12/2021 6 all removed trees not
accounted for
28 Normandy Finnegan 6/15/2021 114
180 Lincoln Finnegan 3/29/2021 36
14 Colony Fabian Flori 2/4/2021 84
5 Childs Joseph Gelormini 12/22/2020 50
39 Woodcliffe Daniel Moeller 12/2/2020 32
24 Columbus Joesph Barr 9/3/2020 16
6 Winding Finnegan 8/26/2020 140
36 Ledgelawn Paul Sramowicz 8/20/2020 70
51 Bertwell Doug Orr 6/24/2020 16
14 Woodcliffe Yun Chang 6/15/2020 121
2 Penny Finnegan 3/19/2020 62
80 Middle Scott Kenton 2/18/2020 84
May 15, 2023 8
Table 4. Plot plans/post-build surveys were submitted
that showed trees to be removed (and were removed)
but no assessments/collections were made for
fee/mitigation.
Property Applicant Certificate of
Occupancy
Issued
526 Marrett John Berglund 2/1/2023
92 Cedar Mark Barons 7/19/2022
7 Holton Mark Barons 7/3/2022
212 Concord James Barr 6/22/2022
197 Cedar J. Gelormini 3/9/2022
44 Paul Revere James Barr 1/14/2022
5 Kimball Fernando Dalfior 8/11/2021
137 Wood Mark Barons 5/31/2021
177 Cedar Finnegan 5/13/2021
272 Lowell James Barr 4/22/2021
101 Bedford John Esserian 4/21/21
48 Lincoln James Barr 1/12/2021
9 Dunham John Berglund 9/14/2020
20 Hill Mark Barons 8/4/2020
198 Bedford James Barr 2/21/2020
17 Volunteer Doug Orr 10/11/2019