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Mamaroneck Town Responds on New Tree Law

The Town of Mamaroneck responded to our request for comment on our reporting on the Town’s New Tree Law, which passed unanimously, despite opposition from members of the community, Nov. 15, 2023.

The Town response is below.

This New Tree Law was the result of many hours of difficult negotiations over a period of years. In enacting the New Tree Law, the Town Board reviewed the laws of other municipalities in the County, consulted with municipal leaders in the County, consulted with the Town environmental planner and arborists, and consulted with an expert recommended by the Town’s Sustainability Collaborative. In addition, the Town Board conducted three lengthy public hearings and in response to public comments made modifications to the various drafts of the law, i.e., decreasing the number of trees that can be removed “as of right”, increasing the number of trees that must be planted to replace them, and requiring a certified arborist to make certain decisions. Then the Town Board responded to changes requested by our Planning Board. We also addressed the concerns of those opposed to any tree law by adding flexibility for emergency situations and a 30-day cap on permit decisions.

The New Tree Law represents a substantial strengthening from the Former Tree Law. The Former Tree Law applied only to lots of greater than 20,000 square feet, about 20% of the lots in Town, and doesn’t provide any limit on the number of trees taken down.

The New Tree Law, when fully phased-in, will apply to all lots in the Town. Further, it provides limits on the number of trees that can be taken down in a 12-month period, depending upon the size of the lot, and requires replanting of trees depending upon the size of the tree taken down. There also will be a period of time when a property for which a tree removal permit was issued cannot obtain a second one. In all cases, a property owner must obtain a permit to remove a regulated tree, so for the first time, there will be a record of what is coming down and how those trees are being replaced. It contains a provision addressing mature trees of 36” diameter at breast height (DBH) or more that in the past have been removed with impunity. The New Tree Law applies to the Town, too, requiring Town officials to alert the Board as to certain Town tree removal plans before it happens so that the Board can weigh in if it has concerns.

Here is a summary of the key provisions of the new Tree Law:

  • The New Tree Law will require persons to obtain a tree removal permit to remove regulated trees, i.e., trees having a DBH of 6 inches or more. Although the New Tree Law is being phased-in, it will apply to every lot in the unincorporated area.
  • The Former Tree Law applied only to lots of greater than 20,000 square feet. This meant that the Former Tree Law regulated only about 20% of the lots in the unincorporated area
  • The New Tree Law places a limit (with some exceptions) on the number of regulated trees that can be removed in any twelve-month period, viz. no more than 7 regulated trees on lots of 20,000 square feet or more; no more than 5 regulated trees on lots greater than 7,500 but less than 20,000 square feet and no more than 3 regulated trees on lots of 7,500 square feet or less.  Although the Former Tree Law contained criteria for obtaining a tree removal permit (the New Tree Law does not), it placed no limit on the number of trees that could be removed if such criteria were met.  The New Tree Law allows the numerical limit to be exceeded in order for hazardous or dead trees to be removed, or if the Environmental Planner or the Planning Board determines that a certain tree “substantially interferes with a permitted use of the property”.
  • The New Tree Law adds extra protection for regulated trees with a DBH of 36 inches or more by prohibiting their removal unless the Environmental Planner or the Planning Board determines that such a tree “substantially interferes with a permitted use of the property”. The Former Tree Law did not offer added protection to trees of this size.
  • The key feature of the New Tree Law is that it requires removed regulated trees to be replaced on a greater than 1:1 ratio or for payment into the Town’s Tree Fund or both.
  • Two replacement trees must be planted for each removed regulated tree with a DBH of between 6 and 12 inches.
  • Three replacement trees must be planted for each removed regulated tree with a DBH of greater than 12 but less than 18 inches.
  • Four replacement trees must be planted for each removed regulated tree with a DBH of greater than 18 inches.
  • The number of regulated trees that can be removed from a vacant lot is not unlimited. The number will be determined by the Planning Board as part of its residential site plan review.  In addition, a lot rendered ‘vacant’ by the removal of existing structures within the prior 24 months is not considered a vacant lot under the New Tree Law.
  • It is anticipated that these ratios of new trees for removed trees eventually will increase the Town’s tree canopy.
  • The Town will monitor the health of the replacement trees. When they are planted, the Environmental Planner will issue a preliminary letter of completion.  One year later, the Environmental Planner will return to assess the health of the replacement trees.  If they have taken root and are in good condition, the Environmental Planner will issue a final letter of completion.  If a replacement tree has not survived, the Environmental Planner either will require the replacement tree to be replaced or if it appears that soil or other conditions were the cause of the replacement tree’s failure, will require payment to the Town’s Tree Fund.  The Former Tree Law did not have a process like this.
  • For lots where size, soil or rock prevents the planting of replacement trees, owners will be required to pay $300 into the Town’s Tree Fund for each replacement tree not planted. The Fund will be used to tend to the existing Town-owned trees by assuring that they are watered and fertilized and to plant more trees on Town property.  The Former Tree Law did not require payment into a fund.
  • During the 12-month period following the issuance of a preliminary letter of completion, a second tree removal permit cannot be issued for the same property, except to remove a hazardous or dead tree. The Former Tree Law did not impose a hiatus between the issuance of tree removal permits.
  • Violators of the New Tree Law will be subject to a number of sanctions.
    • They shall be subject to a fine of $300 for each regulated tree having a DBH of between 6 and 12 inches that they remove without complying with the new Tree Law.
    • The fine is $600 for each regulated tree having a DBH of greater than 12 but less than 18 inches.
    • The fine is $900 for each regulated tree having a DBH greater than 18 inches.
  • In addition to the fine, violators will be required to plant the number of replacement trees that they would have had to plant if they had followed proper procedure, or make the requisite payment to the Town’s Tree Fund. Finally, violators will be precluded from obtaining a tree removal permit for 12 months.

For complete text of the New Tree Law, click here.

 

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Tim Watson
Tim Watson
December 15, 2023 9:58 PM

This wouldn’t have happened if Seligson was still in charge of theTown

Jenny Geer
Jenny Geer
December 9, 2023 9:01 AM

“Greenwashing” is an accurate description of the Town’s official response, which contains misleading statements about the process, content and potential impact of the law. The comments posted by Andrea Hirsch and John Meer cover these misstatements in detail so I won’t bother to repeat them.

What is most stunning and disappointing to me is way the Board ignored the pleas of its constituents to strengthen the law — including 400 who signed a petition, hundreds of pages of written statements, and dozens who showed up to testify at the hearings.

Yet the Board invoked the “Silent Majority” in making its decision. Who is this mysterious group? They didn’t come to the hearings, write to the Board, or organize their own petition. In the absence of more details, one can only assume that this is just an excuse — the Board had made up its mind in advance and was never actually open to listening to its constituents.

The tragedy is that trees are coming down all over town and this law will not prevent that — in fact, the smallest properties (about 1000 of them) are exempt from the law for 15 months (not mentioned in the Town’s statement). By then the trees could be gone. We can’t afford to wait.

John Meer
John Meer
December 6, 2023 11:57 PM

THE GREAT ENEY GREENWASH 

LIE 1: “many hours of difficult negotiations over a period of years.”  The process started six months ago, max, and with no public workshopping, there were literally no negotiations.  It widely speculated that the expedited timeline was required in order to move the Law to a vote before a potentially pro-environment Board member gets sworn in on January 20th, 2024.

LIE 2: “consulted with the Town environmental planner and arborists.”  Which arborists?  The Town Arborist was not consulted.  The Town Environmental Planner is not a Tree Law expert, nor a tree preservation expert.

LIE 3:  “consulted with an expert recommended by the Town’s Sustainability Collaborative.”   One expert, yes. For a brand new law that affects every homeowner.  One expert. And, this expert was not “recommended by the Collab”; he spoke *against* the law at the first hearing.  Also, he is not a Tree Law expert, he is a Forestry Researcher.

LIE 4: “conducted three lengthy public hearings and, in response to public comments.”  These were contentious public hearings, not public workshops as is being characterized. No Q&A was allowed.  Speakers were given 3 minutes, max.  98% of feedback was not heeded. And the law was passed at the end of the third hearing—meaning the 15+ public comments made at that hearing were ignored and not integrated into the Law.

LIE 5: “decreasing the number of trees that can be removed “as of right”.  Over a 2 year period, the number has in fact been increased.

LIE 6:  “We also addressed the concerns of those opposed to any tree law by adding flexibility.”   Who are these people?  None of these people came forward or were ever part of the public process; certainly none spoke at the public hearings.  A racist Nixon-Era phrase—the “silent majority”—was invoked by the tree-phobic Board in order to cow-tow to these invisible “masses”.

LIE 7: “The New Tree Law represents a substantial strengthening from the Former Tree Law.”   According to NO ONE except Jaine and two other board members, vs. 450+ other people in the Town (Petitioners, Collab, etc.). The law has been weakened significantly mainly because trees can now be taken down without regard for necessity, alternatives, and environmental effect (the old law involved a tree-by-tree analysis and consideration).

LIE 8:  “The New Tree Law, when fully phased-in, will apply to all lots in the Town.” The old law applied to 23% of the Town Land Mass, the new law applies to 28% (since Town-Owned land is effectively no longer covered.)

LIE 9: “It contains a provision addressing mature trees.”  36” are ancient trees, 150+ years old—thats the definition given in the Law to mature trees.  A mature tree is closer to 18”.   Meaning, mature trees up to on average 135 years old (35”) can be cut down freely.

LIE 10: “The New Tree Law applies to the Town, too.”  The OLD tree law applied to the Town. The New Tree law pared this coverage 95% down to only include an email to the Board when/if certain Town-owned, non-roadway-adjacent large trees are being taken down. No more pubic notice or public appeal. The Memorial Park Playground debacle *will* happen again.

LIE 11: “The New Tree Law will require persons to obtain a tree removal permit.” So did the old tree law (20K+ sq ft lots).

LIE 12: ” The New Tree Law places a limit (with some exceptions) on the number of regulated trees that can be removed in any twelve-month period”.  Under 20K lots only have a handful of trees; so, this law facilitates clear-cutting.   Not to mention, “The New Tree Law allows the numerical limit to be exceeded…[if]… a certain tree “substantially interferes with a permitted use of the property”.   For example, with this new law, a half acre lot can cut down 14 trees in 15 months time, PLUS any trees the homeowner wants to remove through the Building Dept (for pool, addition, etc.)

LIE 13:  “Although the Former Tree Law contained criteria for obtaining a tree removal permit (the New Tree Law does not).”    If a homeowner wants to cut down any species, size, age (up to ~135 years), or ecologically beneficial tree—in terms of flood mitigation, cooling, erosion control, CO2 uptake, canopy, shade, privacy, property value, and beauty—they may. No more environmental review, as the old law possessed.

LIE 14: “It is anticipated that these ratios of new trees for removed trees eventually will increase the Town’s tree canopy.”  There is ZERO evidence to support this statement. There is no tree survey in the works, or no estimate of trees coming down each year currently. The last tree survey in ToM was 25 years ago.  The Town is losing upwards of 250 trees a year by some estimates, and 1% or more of its canopy annually.  

LIE 15: “The Town will monitor the health of the replacement trees….The Former Tree Law did not have a process like this.” It did for lots 20K+ sq ft, to which the Law applied.

LIE 16:  “The Former Tree Law did not require payment into a fund.” The 20K+ sq ft lot homeowner was required to pay for the full planting and restoration associated with any removal conducted.

OMISSIONs:  Enforcement mechanism? Plan for informing homeowners?  How plan ties into Bldg Code / Planing Board?   Tree Surveys / science to track progress?  

Quite a breathtaking greeneywash!

Andrea Hirsch
Andrea Hirsch
December 5, 2023 11:32 PM

Supervisor Jaine Elkind Eney’s monthly newsletter misrepresents both the new tree law and our old one, which it replaced.

The new law allows an almost unlimited number of trees to be cut. The old law required tree-by-tree decisions and that the environmental effect be considered before any tree could be cut down.

Eney claims that the new law limits the number of trees that can be cut whereas the old one did not. This is highly misleading. The new law allows large numbers of trees to be cut “as of right” every year. In addition, it allows any tree to be cut that “substantially interferes with a permitted use of the property.” During the public hearings, Eney and other Board members explained that, under this provision, one can cut down a large mature tree if it stands where one wants to put a swing set. Given this expansive category, the law places no real limit on the number of trees that can be cut. The old law required that a permit be obtained before one could cut down any tree greater than 6″ in diameter, and the Environmental Planner could issue that permit only after considering several criteria, including the effect on the environment of cutting down the tree. Over great protest, Eney and the Town Board refused to keep that criterion in the present law.

Further, Eney claims that, over time, in response to the public protest to the new tree law, she and the Board reduced the number of trees that could be cut “as of right.” This is false. By halving the time period within which one could obtain a new permit to cut down more trees, she and the Board actually increased the number of trees that could be cut down in a two-year period. From the first version of the law that was proposed to the last, the number of trees that could be cut down as of right during any two years (for small, medium, and large properties) went from 4, 8, and 10, to 6, 10, and 14. 

The new law eliminates important provisions that were in the old law, including by effectively eliminating coverage by the law of the Town itself.

The new law eliminates important provisions in the old law. Under the old law, applicants for permits to cut trees had to notify neighbors and the neighbors could object to the permit being granted. The new law eliminates neighbor notification. Now, the applicant who wants to cut down trees has a right to object to a permit being denied. But those who oppose the applicant’s cutting down the tree have no right to object.

The old law also required that the Environmental Planner, the person who issues permits, must be periodically educated on the science of trees and tree health. The new law eliminates this provision. The old law also required that the applicant for tree cutting indemnify the Town against unforeseen damage and costs. The new law eliminates this provision.

The new law also effectively exempts the Town itself from coverage. Whereas, under our old law, the Town could not cut down any tree greater than 18″ in diameter or any five trees in a 2,500 foot area without notifying neighbors and the public at large, had to delay cutting, and upon an objection could not cut down the tree or trees until a public hearing was held and the cutting was approved, the new law simply requires that Town employees notify the Board before cutting any five trees. It provides no protection for single large trees, requires no notification of neighbors and the public, imposes no waiting period, and does not even require Board approval.

The old law required that the trees that were required to be planted when permits were issued to cut down trees, so-called “replacement trees,” survive two years or the owner had to plant more trees. The new law reduces that period to one year. 

Tree “replacement” is a myth, and the tree “replacement” provisions that Eney touts will result in the decimation of our tree canopy, which is already rapidly disappearing . 

Although the stated purpose of the new law is to protect and preserve our trees, the Town Attorney and Board members themselves describe the new law as a “replacement law,” i.e., a law that does not restrict cutting but simply requires that new small trees be planted or that monies be paid into a “Tree Fund,” that, despite its name, is not even used solely for tree planting. Consistent with this fact, Eney states that the “key feature” of the new law is that it requires that “replacement” trees be planted in a greater than 1:1 ratio — 2 trees for trees 6-12″ in diameter, 3 for trees 12-18″, and 4 trees for trees greater than 18″. Those who opposed the new law, however, presented scientific research showing that it would take 60-70 or more replacement trees (under the new law, 2.5″ in diameter) to replace the ecological benefits provided by even a 25″ diameter tree. The so-called replacement trees will take many decades before they even start to replace the canopy lost by cutting down the mature trees. In the meantime, our canopy in the Town of Mamaroneck is vanishing at the rate of roughly one percent a year.

This replacement mythology is what is most wrong with the new law. It allows large numbers of trees to be cut as of right and an unlimited number to be cut if they “substantially interfere with a permitted use of the property,” without considering the necessity for the trees to be cut, alternatives to cutting them, and the environmental effect that the loss of the trees will have. And it does so based on the fallacy that the these cut-down trees can be “replaced” by planting tiny new trees, when in fact this swapping out of old mature trees for small saplings will destroy our tree canopy and worsen the already-serious erosion and flooding problems that we have.

The new law provides no meaningful protection for old trees.

Eney’s claim that the new law provides “added protection” for trees 36″ in diameter and greater, whereas the old law did not, is also misleading. Under the new law, these trees, like any others, can be cut if they “substantially interfere with a permitted use of the property,” i.e., placement of the swing set. Under the old code, the Environmental Planner had to consider environmental factors and the species of the tree (depending on species, some very old trees may not be large), which would have almost certainly caused the Environmental Planner to deny a permit to cut a large tree (or an old tree, no matter what its size) for this purpose. 

Further, the Town’s Sustainability Collaborative and others urged the Town to protect trees 18″ and larger (as, notably, our old law did regarding trees on Town property). Other localities determine protected tree-size based on species. They also have special provisions concerning trees that are on steep slopes or in wetlands, due to the extra protection against flooding and erosion that these trees provide. But our new law has no such provisions and in fact has no scientific grounding whatsoever because, as explained below, in writing the law Eney and the Board never consulted with tree experts. 

Eney’s description of the process that resulted in the law completely misstates the facts. The Town never consulted with any experts before writing the law, and it never spoke with either the Sustainability Collaborative or members of the public.

Finally, Eney grossly misdescribes the process that resulted in the new law. The Town Sustainability Collaborative, which, under our Town’s Climate Emergency Declaration, is to advise the Board on environmental matters, provided the Board with a white paper and a proposed new tree code. But Eney and the Board never asked the Collaborative a single question and never met with any member of the Collaborative, and the new tree law evidences none of the provisions that they proposed or principles that they emphasized. Most important, Eney and the Board never consulted with any arborists or tree experts before writing the new law. And, rather than there being “many hours of difficult negotiations over a period of years,” as Eney states, no negotiations ever occurred. As stated, neither she nor any Board member ever met with the Collaborative or with members of the public before issuing the proposed law. She acknowledged this herself at the final hearing, saying that the Town never consults with experts or members of the public before writing laws.

Every person who spoke at each of the three public hearings, dozens of people overall, opposed aspects of the new law or the law in its entirety. Community members sent in over hundreds of pages of letters that, almost unanimously, were highly critical of the new law. And 400 people signed a petition asking, among other things, that the Town apply environmental criteria in deciding every application to cut down a tree. In response to all of these residents’ pleas, protests, and accounts of how tree cutting had been devastating to their enjoyment of their properties, and attestation to the significance of trees and the tree canopy to their lived experience in the Town, Eney and the Board made no meaningful changes.

The new law is a stunning retort to all those who disfavored it, to our entire community, and to the environmental health of our Town.

Beatrice & David Birch
Beatrice & David Birch
December 10, 2023 10:49 PM
Reply to  Andrea Hirsch

Ms. Hirsch’s detailed, exhaustive, clear analysis provides a persuasive finding that the new tree law will not only fail to save the tree canopy but in fact will lead to its destruction.

Joseph Zack
Joseph Zack
December 5, 2023 7:59 PM

is the village of larchmont included in this?

Andy Duphrane
Andy Duphrane
December 10, 2023 10:52 PM
Reply to  Joseph Zack

no. The Village of Larchmont has its own gov’t, and has NO Tree Law at all. It is actually one of only 11 municipalities (of Westchester’s 45 municipalities) that does NOT have a Tree Law. So, the Village of Larchmont is WORSE off than Town of Mamaroneck. The Village of Larchmont Trustees and Mayor won’t even bring up the topic for discussion for some reason. There seems to be a false narrative going around that Larchmont somehow has avoided the Tree Canopy decline issue, yet it has just as bad a problem as the Town of Mamaroneck, according to D.E.C.-sanctioned researchers: upwards of 1% decline in Tree Canopy annually. If you look around you can see ancient trees felled and clear-cut lots on a monthly basis. Larchmont needs a Tree Law, badly.

Jenny Geer
Jenny Geer
December 11, 2023 7:01 AM
Reply to  Joseph Zack

The law applies only to the unincorporated area of the Town, and Village of Larchmont properties are not covered. In fact, the VOL has no tree code (it should). But all Town residents (including VOL and VOM) are constituents of the Board and have a stake in Board decisions.

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