Abstract
As the density of development has increased in New York City and its northern suburbs over the past 2 decades, there has been increased concern about the preservation of trees on private land. This paper presents a snapshot of how these ordinances have developed, the present situation, and the future of this area of regulation. Many of the 41 town or villages in Westchester County, New York, have some form of tree preservation ordinance. (Westchester County is an affluent suburban area immediately north of New York City, and has seen its population more than double in the past 20 years.) Important features of these ordinances include the types of private property or subdivisions covered by the regulations, use of the concept of clear-cutting protection, tree classification and coverage, tree density, and enforcement mechanisms. Three types of ordinance can be differentiated. In the first type, large lot sizes are regulated, while the second type, demonstrates a variety of concerns about tree size and type. These ordinances are generally too weak to substantially protect private trees. The third type of ordinance, more recent in passage (or amendment), contains sufficient detail for strong enforcement in the areas of concern. A set of model regulations is recommended for all ordinances that control trees on private land.
History and Overview
The movement for tree protection in and near cities has its roots in the protection of public parklands and shade trees along public highways (5,12). The urge to protect trees has been widely recognized (1,8). The National Arbor Day movement, which has encourged the celebration of National Arbor days for well over 30 years, is another expression of public sentiment that trees should be planted to replace those that have been cut down during development.
In New York State, tax policy encourages the preservation and replanting of woodlots (14), as do public agencies (15). Tree protection ordinances in some form have existed for almost 50 years in New York City (13). These ordinances require the protection of trees during development, their replacement due to deliberate damage, and fines for destructive acts (13). The ordinances in Westchester County came much later, starting in the 1970s, perhaps inspired by the new Earth Day movement (Bob Herberger, New York State Department Environmental Conservation, personal communication). Enforcement mechanisms were set up to police the protection of trees in public areas at that time.
More dramatically for the ordinary homeowner, the next stage of the movement turned towards protection of trees on private land. At that point, the residents of Westchester County decided that perhaps their love of trees should be balanced by their right to control activities on their own land— the classic debate between the value of a resource to the present generation versus the philosophy that the land is in trust for the next generation and needs to be preserved with some of its original character. Tree protection ordinances, ranging from strong to minimal levels of regulation,attempt to balance these concerns. This battle between philosophies is at the heart of future progress in this area and, judging by the strength of recent ordinances, seems to be tilting towards greater protection for trees and less autonomy for homeowners.
Lewisboro (25) appears to have the oldest tree protection ordinance affecting private land (1977). A multitude of new ordinances were passed in other communities in the 1980s: Irvington in 1980, Scarsdale in 1985, Tarrytown in 1988, White Plains in 1984, Bedford in 1988, and Mt. Pleasant in 1989 (4,7,9,22,26,29). These relatively new ordinances support the premise that there is increased interest in trees. While we do not have the legislative history of each town, it appears that little previous consideration was given to the issue of tree protection on private lands because it was not perceived as a problem.
Ordinances in Westchester County
Enabling legislation in New York [municipalities generally cite general zoning statutes, Municipal Home Rule Law Section 10, Article 2, or Article 53 of the Environmental Conservation Law (18)] has empowered local governments to adopt a variety of tree protection ordinances. Sixteen of the 41 towns or villages in Westchester County have some form of tree preservation ordinance (Table 1).
Westchester County municipalities reviewed for tree protection ordinances.
There are many types of controls related to trees on public property. Many communities have detailed committee oversight, permit requirements, specification of tree types and sizes, restrictions on various kinds of activities, and details for tree planting. Generally these regulations deal with trees along city/town/village streets and in parks. The concept of control of trees on private lands has been much more controversial. Although a host of activities are controlled on private lands (zoning restrictions; restrictions on building sizes, bulk, and setbacks; requirements for architectural review; and control of development on wetlands), treatment of trees in these areas has only recently been carefully considered.
The trend now is towards more stringent regulations in the southern and western sections of Westchester County. This trend correlates well with higher population densities in those areas. As populations have increased over time in northern areas of Westchester and in southern Connecticut, there has been increasing concern over tree protection in these areas as well.
The 41 towns and villages examined have been categorized into those that do and those that do not possess an ordinance and the date of most recent passage (Table 1). Copies of the ordinances and related materials are not easily obtained. Some were found in the files of the Federated Conservationists (located at that time at The State University of New York at Purchase, now at Westchester Community College), and some at the municipal ordinance library of Pace University in White Plains. Much of the information was obtained by contacting the municipalities directly through town clerks, building inspectors, town arborists or their equivalent, and town supervisors.
In the 16 communities for which tree protection ordinances exist, trees on private property are protected by the legal mechanisms used by that town/village/city, including proclamations, local ordinances or both (Table 1). Important features of these ordinances include types of private property or subdivisions covered by the regulations; the prohibition of clear-cutting; tree classification and coverage; tree density; and enforcement mechanisms. Summaries and details of the ordinances are in Tables 2 and 3.
Comparison of features for towns with private tree protection ordinances.
Details of tree ordinances.
The ordinances are organized into 3 general types: Type I ordinances are those passed early in the movement and generally lack specifics on several major issues. Type II ordinances were also passed early, but contain more substantial controls and rigorous standards. Type III are then ew type of ordinances that seek to combine very specific objectives, with some techniques for allowing the homeowner to determine how exactly to achieve these objectives.
Alternatives to tree ordinances
Although some communities do not have tree protection ordinances per se, some have provisions that are applicable to trees. For example, the city of Mt. Vernon protects shrubs, but not specifically trees (personal communication). Proposals for the protection of local trees may be submitted to a Conservation Advisory Council in the village of Dobbs Ferry (personal communication). Tree identi1fication and preservation plans may be submitted by local citizens to the Conservation Advisory Council in Eastchester (19). The towns of Harrison and North Castle have tree removal procedures tied to building permit reviews (24,27). The village of Pleasantville has a “Keep Pleasantville Green Program” to encourage citizens to plant trees (personal communication). That program is also part of the Tree City, USA program, which exists in other locales in Westchester and New York State (15).
Rationale for tree protection
The reasons given for tree protection ordinances are aesthetics, health, local custom, and historic preservation. Among such reasons are the following:
The removal of trees impairs the stability of the affected property in a community (21).
Shade and heat transpiration are naturally provided by trees (24).
Trees provide oxygen and improve air quality, act as windbreakers, decrease water pollution and surface drainage problems, and prevent soil erosion (17).
Trees stabilize normal soil, provide a required ecosystem for health wildlife, and are good buffers for everyday noise (17).
Real property with healthy trees on its landscape would be higher in value than one without trees on its landscape (6).
The functions of trees are beneficial to the health and well-being of the general public (21).
Tree ordinances ensure an acceptable level of green foliage in intensely developed areas (7).
Types of private property covered by regulations
Several communities regulate trees that stand in areas being developed as subdivisions. For example, if a tree is removed during subdivision development, “the hole left vacant shall be filled to the specifications of the Planning Board (3).” The Town Board or the Planning Board of Greenburgh requires that trees be considered on site plans or subdivision proposals (10). Subdivision developers in Pound Ridge may not remove trees 12 inches (30 cm) or greater in diameter without a permit (28). Removal of landmark or unique trees on a subdivision is not allowed in the town of Somers (23). A tree inventory of trees 24 inches (60 cm) or greater in diameter on subdivisions is required in Tarrytown (29).
Other ordinances include land both in subdivisions and other private property. For example, Mt. Pleasant requires a permit for the removal or harm of any tree on “pending and future development proposed on privately owned land, including vacant land, redevelopment projects on land to be cleared of structures, conservation and conventional development and plans for new one- and two-family homes”( 26). White Plains has a similar ordinance (7).
Many municipal regulations are restricted to lots of specific sizes. In one category, 2 municipal regulations apply exclusively to large lots. The removal of a tree on land with a residence on less than 5 acres is not covered by the town of Bedford (22). Similarly, regulations cover only lots over 5 acres in Lewisboro (25) and 3 acres or greater in Irvington (9). In a second category, the same objective is achieved by including all lots, except small areas. For instance, lots of 1 acre or less are not covered in the towns of Greenburgh (21), North Tarrytown (16), and Tarrytown (29). The town of Mt. Kisco (2) protects trees in a Primary Tree Protection Zone (“the portion of a lot consisting of a front, side, and rear yards”) and specimen trees in a Secondary Tree Protection Zone (“all land not included in the Primary Zone except for sidewalks and the street right of way”) (2).
Lot characteristics are often considered in the ordinances. For example, areas with steep slopes require tree removal permits (22), while trees in wetlands are protected under separate wetlands legislation (18).
What is a tree and what trees are covered?
The ordinances define a tree as a plant with a well-defined root system and a solid trunk of specific girth at a specified height. The primary reason for the specificity is to exempt shrubs from regulation. Tree categories include special, protected, and landmark (or historic) trees. Special trees are those particularly regulated, usually in a list as in Eastchester, Tarrytown, and Rye Brook (18,29,30). Protected trees as a category are specified in Tarrytown, Pound Ridge, Rye Brook, Scarsdale, and White Plains, by characteristics such as size and species (4,7,28,29,30) (Table 4). Historic trees (sometimes called landmark trees) are those protected because of their age or association with historical events (24,29,22).
Protected trees in 4 communities.
Specimen trees are usually designated by size, species, or setting. Tarrytown forbids the removal of specimen trees 12 inches (30 cm) or greater in diameter with a minimum of 15 ft. (4.6 m) of crown present (29). In Irvington, the restrictions are for trees 24 inches (60 cm) or greater, in White Plains, 12 inches (30 cm) diameter or greater and a minimum of 15 ft. (4.6 m) of crown, and in Rye Brook 24 inches (60 cm) diameter or greater (7,9). The town of Mt. Pleasant has one of the most advanced and sophisticated tree ordinances: it considers the species of tree when deciding if a tree is a specimen (26). For small trees, including dogwoods, redbuds, and sourwoods, a specimen tree need only be 12 inches (30 cm) or greater in diameter to be protected. Hardwoods, including oak or hickory, over 30 inches (76 cm) are considered specimens, while softwoods over 36 inches (90 cm) are considered specimens. Trees of exceptional quality or historical significance are declared protected trees by the town board.
Trees covered by ordinances are specified by size. Trees 4 inches (10 cm) or greater in diameter require tree removal permits in Harrison, Mt. Kisco, North Tarrytown, and Tarrytown (2,16,24,29). Trees with a diameter of 6 inches (15 cm) or greater are protected in North Castle, Greenburgh, and Irvington (9,21,27). Five municipalities protect “large” diameter trees: Lewisboro, Scarsdale, Rye Brook, Bedford, and White Plains (4,7,22,25,30).
Clear-cutting and density provisions
Many municipalities recognize the significance of clearcutting as an act to be avoided in development activities (Table 2). The town of Mt. Pleasant has led the way with a detailed “Tree Density Factor,” a calculation based on the number of trees in each diameter size group (26). The Tree Density Factor is used to calculate tree coverage and tree replacement density on a site. Under this rule, the greater the number of large diameter trees, the larger the density factor; thus, the greater number of trees that must be replanted. Tree are protected from clear-cutting on many private properties—even if the site contains no specimen, historic, or protected trees. Alternatively, some communities mandate the replacement trees after development activities.
The town of Somers forbids the clear-cutting of trees 4 inches (10 cm) or greater (23). Pound Ridge does not allow the cutting of more than one-half of existing trees on an area of 1 acre or more in any 5-year period. “Extensive” tree cutting (not defined) is not allowed in Harrison, Bedford, Greenburgh, Irvington, or North Tarrytown. The latter 4 communities may allow the cutting with the supervision of an appointed inspector.
Enforcement mechanisms
The mechanism for enforcing the ordinance is usually a permit system (Table 2), as in Bedford, Greenburgh, Irvington, North Castle, Rye Brook, Scarsdale, Tarrytown, Ardsley, Pound Ridge, Harrison, Lewisboro, North Tarrytown, White Plains, Mt. Kisco, and Mt. Pleasant. Alternatively, tree restoration as part of development project requires the posting of a performance bond in Ardsley, Greenburgh, Harrison, Irvington, North Tarrytown, Pound Ridge, and Scarsdale. Penalties and fines for violating provisions of the tree protection ordinances generally include fines of $250 or less, imprisonment of 15 days or less, or orders to replant a tree of a specified size (Table 2).
Discussion
A range of concerns emerges relative to the 16 municipalities with private tree protection ordinances reviewed in this study. The oldest ordinances were clearly not drafted for the general purpose of protecting trees on private property. Rather they appear to originate from some special concern, such as protection from clear-cutting (as in the town of Somers, almost to the exclusion of other concerns), or pertain to the removal of very large trees that happen to be found on private lots.
Three types of ordinances can be differentiated. In the first type, large lot sizes are regulated, such as in Bedford, Lewisboro, Irvington, and Somers. This category is generally very weak and contains few details to ensure enforcement (with the exception of clear-cutting).
In the communities of Ardsley, Harrison, Lewisboro, Tarrytown, North Castle, North Tarrytown and Scarsdale, a second type of ordinance addresses a variety of concerns about tree size and type. These are generally older ordinances, with the exception of Scarsdale, and are generally too weak to substantially protect trees. The third type of ordinance is generally more recent in passage (or amendment) and contain sufficient detail for strong enforcement. Greenburgh, Mt. Pleasant, Pound Ridge, Larchmont, Mt. Kisco, Rye Brook, and White Plains fall into this category. The tree ordinances in at least 3 of the towns—Bedford, Greenburgh, and Pound Ridge—appear to share a common history because the ordinances are similar in language and terminology. Compared to the other communities in Westchester County, these 3 towns have substantial regulations and should be considered models for other municipalities.
Some towns do not have tree ordinances because of lack of interest or because of opposition from those who feel that control on private land is an undue burden. This has been the case in Connecticut towns located just north of Westchester County, particularly Greenwich (author’s experience). While Greenwich has shown an interest in maintaining an inventory of trees, there are no ordinances or enforcement mechanisms to protect them.
Model ordinances and assertions that all tree ordinances should support
The author recommends the following features be included in all tree protection ordinances for private land.
All trees (private, park, street, etc.) must be considered for preservation.
No trees over a certain size (determined separately for each species) or category (for instance, trees listed in a town inventory as “trees to remember”) will be allowed to be cut except under the most extraordinary circumstances. This is the botanical equivalent of granting historical protection to a building. It is equivalent to the premise that one purchases land zoned for specific purposes and that it is generally not expected that one can go beyond that use. A developer might be prohibited from building on the site because of the tree, in the same way that a developer might not be able to develop a wetland.
All trees on undeveloped land that are required to stay (not be removed) should be protected using modern preservation methods. It is the practice of some builders to “accidentally” run over the roots of trees that they would prefer to remove, but have not been granted permission. Substantial protection can be provided by using 4 x 4 and 2 x 4 posts at least 10 ft from the tree trunk. A builder should be required to post a bond for a period of 2 years. The value of the bond would be the nursery replacement value of that tree. The number of trees to be planted would be roughly equivalent in basal diameter to those removed (see 7, below). It would be presumed that the tree must be replaced near the existing landscape if it should die in the succeeding 2 years.
The type of tree to be replaced should be carefully considered. Generally, hardwoods should be replaced with hardwoods, evergreen with evergreens.
The type of fill used in many sites should be carefully evaluated in order to prevent unsuitable soils from killing surrounding trees.
Under most circumstances, ordinances should forbid clear-cutting of trees on lots.
In the unusual situation in which clear-cutting can be justified, tree density calculations should be made to ensure that a sufficient number of trees are replaced in an area.
In the even more unusual situation in which a protected tree must be removed (under permit) or has been killed by building practices, there should be a strict replanting schedule requiring that replacement trees be at least 3.5 to 4.5 inches (9 to 12 cm) in caliper and that the sum of their basal areas be equal to that of the tree(s) removed. The implication is that if a very large tree is removed, it should be replaced with many smaller ones.
For features 7 and 8, there should be provisions to replant some of the trees in parkland or on streets, if the new trees cannot all fit on the new lot.
Fines for removing trees illegally should be commensurate with their true value measured as the added value to a property. Alternatively, the cost of replacement, using the formula in 8, should be considered the minimal cost for the violation.
Tree planting or removal activities associated with development should be regulated in the same way as other building processes. Tree protection and/or replacement activities should be considered in granting the final Certificate of Occupancy for a property.
These 11 points pull together the most stringent features of the ordinances reviewed. While it is unlikely that all of them will be adopted by most communities, each concept should be strongly considered.
- © 1996, International Society of Arboriculture. All rights reserved.
In this issue
Jump to section
Related Articles
Cited By...
- No citing articles found.