Green Acton Position on Protecting Public Shade Trees

Approved by the Green Acton Board of Directors

This memo has been written to advocate for changes to provide more protection for Public Shade Trees in Acton.

Public Shade Trees, defined as “All trees within a public way or on the boundaries thereof” (see Massachusetts General Laws, Part I, Title XIV, Chapter 87, Section 1), have special protections under Massachusetts law. However, further protections in Acton would be achieved by improving the following local processes:

TREE VALUATION method/process
TREE HEARING process
TREE PROTECTION ENFORCEMENT capacity

Massachusetts law affords healthy public shade trees the legal right to a “tree hearing,” whereby the person (the developer or “applicant”) wanting to destroy the tree must justify doing so, and gain permission to do so. A town or Board of Selectmen can deny the request, require the developer to protect the tree, and/or approve removal with a replacement cost to the developer if a public shade tree is destroyed or harmed beyond repair.

Tree Valuation Method and Process: The official method of valuing public shade trees involves determining the cost to the applicant for destroying a public shade tree. Currently, the calculation for the cost results in a relatively low cost to the developer/ applicant. Consequently, there is little motivation for the developer to create plans that would preserve public shade trees, ensure on-site actions to preserve them, and/or protect them during construction.

Further, currently in Acton, applications for tree hearings are too often processed after a developer has already gained project design approval by the permitting authorities. This process favors developers and can lead to the demise of trees. Here are two examples of unnecessary tree loss in the past year:

• 146 Prospect Street: Regarding the building of new houses at 146 Prospect Street, the Acton Zoning Board of Appeals approved the project design before the four significant trees were given their hearing. Once the project was approved, the developer brought heavy equipment onto the site and severely damaged the trees before the tree hearing was conducted. The four public shade trees were destroyed. [See Photos 3 and 4, below.]
  
  
• 46 High Street: For a project at 46 High Street, which consists of the building of new houses, the Acton Planning Board approved the project design before the trees were given their hearing. Fortunately, members of the public complained loudly enough that the driveway design was changed to avoid the trees. However, insufficient enforcement protections by the Town resulted in the developer harming the trees, as evidenced by the developer cutting the roots of the public shade trees and storing construction debris too close to the trees. [See Photos 1 and 2, below.]

We propose three changes to the approval/enforcement process to ensure that public shade trees are better protected in the future.

1. Change the public shade TREE VALUATION method

We propose that the Town update its tree valuation method to better take into account the value of significantly sized public shade trees and the cost to replace them. See Figure A, below, for a graphic and detailed description of the current method compared to the proposed method. A significantly higher cost of public tree removal or harm would compel developers to be more thoughtful about the fate of the trees in the planning/design process, and would deter them from removing or harming public shade trees not approved for removal in the plan. If the replacement cost is only minimally increased, developers will be willing to absorb the cost and we will continue to lose our public shade trees. Only if we completely change the valuation system to provide stronger protection will we succeed in preserving our public shade trees.

2. Change the TREE HEARING process

We propose that the Town require a public shade tree hearing to occur before permitting authorities (e.g., Board of Selectmen/Select Board, Planning Board, Zoning Board of Appeals, Conservation Commission, Board of Health, Historic District Commission, etc.) conduct hearings and/or approve a project design, and that all public shade trees be marked clearly on all proposed project plans with the words “public shade tree,” along with each tree’s diameter. This will result in more-informed decisions by boards/committees that take into account the impacts on the trees before granting approval for the project design.

In the current process, wherein a proposed project design may be approved before a tree hearing, developers have claimed (at the tree hearing) that it would be too costly to change their approved plans in order to save trees. This has been found to be an acceptable justification by permitting authorities, and has resulted in the loss of significant public shade trees. This process favors developers at the expense of trees. [See the proposed tree hearing timeline in Figure B, below.]

3. Add TREE PROTECTION ENFORCEMENT capacity

Currently, we have a single tree warden, who may not have the time for the enforcement that would be required to protect our public shade trees. By increasing the number of staff hours devoted to enforcement, we could avoid what happened at both 146 Prospect Street and 46 High Street. Because the Building Department plays a role in inspecting building projects in town, the Town should clarify the responsibilities of the Building Department and Tree Warden in order to ensure that construction sites are visited often enough by staff to ensure that public shade trees are protected.

DETAILS

1. Proposed TREE VALUATION Method/Process

There are numerous ways to assess the value of a tree, many of which are well established in case law, forestry programs, and tree warden programs. Currently, the method used in Acton (and most of the Commonwealth) is a “diameter measurement” method, which takes into account only the diameter of the tree in question. In contrast, the cross-sectional method is a more accurate measure of the tree’s true value because the cross-sectional method takes into account not just the diameter, but also, the cross-sectional area of the tree.

We propose that Acton adopt use of the cross-sectional method, which is now used by many municipalities nationally, and which is recommended by forestry programs. See list of Tree Valuation References, below, and See Figure A for a comparison of a diameter method with a cross-sectional method.

See Figure A to see a comparison of a diameter method with a cross-sectional method:

Figure A: Public Shade Tree Replacement Valuation Methods:
A comparison of the “diameter method” with the “cross-sectional method”

In this drawing, we use an example of an 18” (diameter) tree replaced by a number of 3” trees. Using a diameter method, the replacement of an 18” tree would be six of the 3” trees. Using a cross-sectional method, a total of 27 trees would be required to replace the 18” tree.

Using the latter method, the cost to the developer would be sixfold what it would currently be, creating a distinct financial incentive for the developer to protect the tree. If, instead of an 18” tree, one considers the replacement cost of a 24” or 48” tree, the difference is even more stark.

We have yet to identify a town in Massachusetts that is using the cross-sectional method, but we noticed that Cambridge is considering it. Acton’s adoption of the cross-sectional method would make our town a leader in the Commonwealth in tree preservation.

Modern tree valuation methods often use factors in addition to the cross-section metric (including location, condition, and species) that can improve the quality of the valuation.

2. Proposed TREE HEARING PROCESS

Currently, public shade tree hearings are conducted after a project has been approved. For example, both the 146 Prospect Street and 46 High St projects were approved with a driveway going right through the public shade trees.

See Figure B below, which shows the difference between the process that takes place now, and what we are proposing.

Figure B: Tree Hearing Process

In the case of 46 High Street, the Acton Design Review Board (DRB), a volunteer board that currently consists largely of professional architects and/or landscape architects, reviewed the project plans and prepared a memo with recommendations to the approving authority (in this case, the Planning Board). During its review, the DRB did not know that there were significant public shade trees that would be impacted by the project. According to members of the DRB, had they known about the public shade trees, they would have opted for a significantly different memo, recommending a change in the design to protect the public shade trees.

The Chair of the DRB and another member wrote follow-up memos to the Planning Board advocating for a different design. A design that was not the DRB’s first choice eventually got approved. The approved design spares the trees, at least in the short term, but in it the driveway will be very close to the trees, potentially putting them at risk. [See 46 High Street Photos 1 and 2, below]. The point is that the Planning Board was very close to approving the driveway going through the public shade trees, and the solution they approved still puts the trees at risk. In sum, it would have been in the best interest of preserving the trees to hold the tree hearing before the Planning Board hearing, and to require the marking of the public shade trees prominently on the proposed project plans.

3. Tree Protection Enforcement Capacity

Because of the lack of enforcement, public shade trees are at risk. See, for example, the destruction that occurred at 46 High Street:

Photo 1 [top] and 2 [bottom] are photos showing 46 High Street, where the developer dug very close to the public shade trees. The graveled areas (the gray areas by the orange traffic cones) are areas in which there was formerly dirt. Note how close the gravel and the digging are to the tree. In Photo 2, in particular, see significant roots that were cut to make way for the driveway. There is also construction storage right next to one of the trees. These trees are now in danger because of lack of enforcement and the relatively low replacement cost/penalty that the developer expects to pay.

And at 146 Prospect Street:

Photos 3 [top] and 4 [bottom], show 146 Prospect Street, where the developer dug so close to the trees that they became a hazard and had to be removed for safety reasons. Here, four very large public shade trees were lost on this property because of lack of enforcement and the minimal penalty imposed on the developer. In Photo 3, the ground was carved away, leaving the tree with no roots on one side. Photo 4 shows that the ground next to the tree was dug up by a bulldozer, which got so close that the tree was tipping over and had become a hazard.

See the arborist report for more details about the 146 Prospect Street public shade trees that were destroyed.

SUMMARY

In summary, Green Acton believes strongly that the Town needs to provide more-significant protection for its public shade trees than it currently does. As deforestation continues in Massachusetts, we realize that our trees are far more precious and valuable than we once imagined — both as sources of shade and beauty, and due to their capacity to store carbon, as a critical element in our efforts to arrest the progression of the Climate Emergency. The recent Climate Emergency Declaration enacted by Acton Town Meeting underscores this by calling for Acton to “protect trees, forests, and other open spaces because of their ability to draw carbon out of the atmosphere and store it.”

This memo has been written to advocate for better protection of trees in our town — an accomplishment we believe many Actonians support, and which will be another source of pride in our community.

In order to achieve this result, we call for:

1. Tree Valuation that relies on a cross-sectional measurement rather than a diameter measurement

2. A Tree Hearing Process that assures that
• trees are marked on original plans
• a tree hearing takes place before permitting or any construction on a site is allowed

3. Tree Protection Enforcement on construction sites, via visits to sites by Town staff sufficient to protect public shade trees before damage is caused by an applicant

Only when all three of these new policies are enacted will we feel that Acton is doing all it can to adequately preserve our public shade trees. We urge the Town to attend to these matters, and pledge assistance if Green Acton can be of help toward the implementation of these new approaches to public shade tree protection.

TREE VALUATION REFERENCE LINKS

Here is an example of a Seattle policy that uses a cross-sectional method: http://www.seattle.gov/documents/Departments/SDCI/Codes/DR201817.pdf

University of Georgia advocating for cross-sectional valuation method: http://www.warnell.uga.edu/sites/default/files/publications/Tree%20Replacement%20Equivelancies_0.pdf

Getting a permit to damage or remove a public shade tree requires a calculation of the “value” of a tree. New York City has this guidance about the replacement cost of a tree, which is valuable in determining a method for valuing a tree: https://www.nycgovparks.org/pagefiles/128/New-York-City-Tree-Valuation-Method-05-04-2018__5b2ad0f011a85.pdf

More guidance for tree valuation from Kentucky State, specific to the cross-sectional method: https://extension.tennessee.edu/publications/Documents/SP614.pdf

Federal guidance for updating tree valuation method to include cross-sectional valuation: https://www.fs.fed.us/nrs/pubs/jrnl/2019/nrs_2019_nowak_002.pdf