5.15.2020 – H.673, An Act Relating to Tree Wardens

This week the Legislature put the finishing touches on immediate COVID-19-related legislation and moved on to bills that have been on the Calendar that are time-sensitive.

In 2018, the Emerald Ash Borer (EAB) was detected in Vermont. This was a sad day though not unexpected. We were aware of its presence in nearby states and knew that it was just a matter of time before it got to us. We had taken steps to slow its progress by, for instance, not allowing firewood to come into Vermont with campers from other locations but it was virtually impossible to stop it altogether because the insect flies.

The ash tree is beloved amongst those of us who heat with wood. Ash burns well, green or dry, and is relatively easy to split. It always gives us a sense of assurance to have a few left in accessible places just in case it is a tough winter and we run low on firewood. Ash trees are sometimes our ticket to warmth during a late spring cold snap.

In coming years, the EAB may well be responsible for the widespread death of our ash trees and in preparation for that eventuality, the Commissioner of Forests, Parks, and Recreation (FPR), Michael Snyder, asked House Agriculture and Forestry to introduce and work on a tree warden bill so that towns would be prepared for what is heading our way.

The original draft of the bill was somewhat far reaching, and it was interesting to witness the response from various towns and tree wardens as we considered it. It ran the gamut from yes, they loved it, to no, what were we thinking? This reaction led us to some interesting discoveries and an understanding of why we need to take action, though perhaps not quite as ambitious as originally thought.

The fact that the tree warden statutes have not been updated since 1904 had something to do with it, as well as the impending threat. We sincerely thank our Legislative Council, Commissioner Snyder and Deputy Commissioner Sam Lincoln of FPR, and the Vermont League of Cities and Towns (VLCT) for their help and guidance as we crafted the bill, H.673.

Currently in statute, a town’s legislative body (Select Board) is required to appoint a tree warden. Not all towns have one, but the position will become more important as the EAB spreads.

The road to our final version of H.673 took us down some interesting pathways and it’s safe to say we all learned a lot. For instance, the landowner owns the trees in the right of way (ROW), but the town has an interest in what happens there and has a right to manage activity that occurs there. Some towns own the right of way in fee simple and have complete control over what happens in the ROW. Trees that are a hazard may be taken down at any time if they have an impact on public safety.

After extensive testimony, what we have tried to do is strike a delicate balance between the rights of individual landowners and a town’s responsibility to maintain public safety. It is important that Select Boards in each town appoint a tree warden as is currently required. However, we understand that it is sometimes difficult to find someone in town to fill this role. For that reason, we allow the Select Board to appoint someone who is not a town resident. When the tree warden has been appointed, the Select Board will notify the Commissioner of FPR with the warden’s contact information so that there can be better communication and so that FPR can offer technical assistance to the town and tree warden.

One of the keys to understanding the need for this bill is that it is meant to provide clarity and reduce confusion and conflict. We heard stories of inconsistency and misunderstanding amongst towns. One, in particular, involves an Addison County farmer who hired a contractor to clear the ROW of trees and brush next to his fields. The fields actually straddle two towns and one town had no problem with the clearing while the other went to court and wants to fine him $1.5 million.

Our bill provides clarity in that it defines “shade tree” as a tree (shade or ornamental) that is in whole or in part in the ROW and was either planted by the municipality or has been designated by the municipality in a municipal shade tree preservation plan. The tree warden shall control these shade trees within a municipality and may, along with the Select Board choose to adopt a shade tree preservation plan, mentioned above, that would be enacted through an ordinance process. It should be clear that there will be many trees in a town that cast shade that will not have been planted by the town or be part of a shade tree preservation plan – they are not subject to this bill unless they are a public hazard or are infected with or infested with disease or pests.

A town doesn’t need to have a shade tree preservation plan if they don’t want. If they choose to have a plan, several elements are required including a description of any program for the planting of new trees and shrubs; provisions for the maintenance of shade trees through feeding, pruning, and protection from noxious insect and disease pests; and the process for the removal of diseased, dying, or dead shade trees. The plan may also designate a tree that is critical to the cultural, historical, or aesthetic character of the municipality. If such a shade tree preservation plan is proposed by the tree warden and legislative body, the public is given an opportunity to weigh in at a minimum of one warned public hearing.

The tree warden will have the ability to remove or cause to be removed any tree that is infected by or infested with any tree pest that constitutes a public hazard. If an abutting landowner has sufficiently controlled insect pests or tree diseases, the tree warden may determine that it is not necessary to remove a tree. There are treatments available for the EAB but they are expensive, so if you have a beloved ash tree that you want to save you can do so.

If designated shade trees are to be removed that are not infected, infested, or are hazard trees, there is a requirement that the tree warden post public notice at least fifteen days before the tree is to be removed. This may be appealed in writing by a resident or landowner of the town and the legislative body will hold a public hearing at which objections to the cutting or removal may be heard. The legislative body will then make its decision, which will be final. It should also be noted that if designated shade trees are located on property that is held in fee by another, the municipality is required to notify the abutting landowner at their address of record so they are aware of what is happening.

H.673 passed second reading in the House on a strong vote. On Wednesday, it will hopefully pass third reading, and we will then see how it fares in the Senate.