Growing concerns over tree bylaw

On the morning of June 5, Elizabeth Rozan was drinking coffee in her home office when the low growl of heavy trucks began on Sheridan Street. Pamela Lyons felt the rumble as it filtered through the glass doors of her living room a few houses over. “This is it,” she thought. “They’re here.”

Rozan got outside before the first cut. Throughout the morning, neighbors intermittently joined, taking cover under umbrellas and watching the crew as it worked on the lawn of a nearby home. Work was delayed at two separate points when the police showed up, first at 7:45 am because the home’s owner alleged that a neighbor was “attempting to stop tree work,” and again around 11:30 am because of a complaint that the tree company was blocking the road, according to police dispatch reports. But by the afternoon, the large Oak, which neighbors estimate had stood in the same spot for 180 years or more, was gone.

“To see it come down, it was heartbreaking — a living thing,” said Lyons. 

The home’s owner had the legal right to take the tree down. But some believe the Oak’s demise was a dramatic emblem of a wider problem. 

A group of residents have grown increasingly concerned about the pace of tree removal in Lexington. Neighbors have been particularly incensed by the number of trees cut down at 69 Pleasant Street to make way for developer Todd Cataldo’s new subdivision of 9 single-family homes, expected to list for around $3 to 4 million dollars each, and by the proposed Tracer Lane Solar project, which would require cutting down more than 800 trees in a forested area adjacent to conservation land and the Cambridge Reservoir. 

Advocates say that the rules meant to protect Lexington’s trees aren’t strong enough, that developers can find ways around them, and allege that the town is not adequately enforcing the existing bylaw, which requires homeowners and developers to log the trees they plan to cut down as part of the building or demolition permitting process and either replant or pay mitigation fees for certain removals. 

In the case of the old tree on Sheridan Street, the owner hasn’t applied for any building or demolition permits, so the town had no way to protect the tree.

A review by the Lexington Observer showed that tree permit and application paperwork submitted to the town is inconsistent and irregularly uploaded to the town’s permitting website. A lack of records makes it difficult to determine what trees have been removed and how the town has calculated fees.

Some members of the Lexington Tree Committee, a group assembled two decades ago, argue that the discrepancies have added up to significant revenue losses and environmental consequences. In August, the Select Board approved the creation of a working group to examine enforcement and data collection related to the bylaw. The Board is expected to consider the group’s mandate at an October meeting.  

“The bylaw isn’t working as it’s written,” said Nancy Sofen, a member of the Tree Committee who has lived in Lexington for nearly 40 years. “The fact that in some cases it’s not being enforced as rigorously as we would like just compounds the injury.” 

The Department of Public Works, which is responsible for enforcing the bylaw, has recognized that some inconsistencies exist and says it’s working to alleviate them, but told the Observer that the irregularities are not widespread. 

“The bylaw is doing what we want it to do,” said David Pinsonneault, the Department’s director. “With the resources that we have, the effort is there. We need to tighten up some things and fine tune some things.”

Lexington adopted its Tree Bylaw in 2001. The bylaw recognized the environmental and climate benefits of trees, as well as their “aesthetic appeal.” It created the Tree Committee and a Tree Warden to help regulate tree removals and promote replanting. The bylaw also placed fees on certain tree removals associated with “major construction.” 

The original intent, according to Patrick Mehr, a Lexington resident who helped write it while a member of the Tree Committee, was to encourage builders and homeowners to “think before you cut.” An analysis published this year showed that Lexington’s tree canopy has actually increased incrementally by 3 percent from 2014 to 2021. But some residents, including members of the Tree Committee, are still worried that development pressures in Lexington are outweighing incentives to keep trees on residential lots. Since its adoption, the town has voted to add several amendments to the bylaw in attempts to strengthen it. 

Today, for trees larger than six inches in diameter, developers and homeowners must pay a permit fee of $20 for each inch of “diameter at breast height” (DBH) in trees they remove from a property’s setback area. They must also pay $200 in mitigation for each DBH inch removed. That amount is quadrupled if a tree is larger than 24 inches in diameter. To offset mitigation costs, a builder can replant trees on the property. Builders receive extra credit if they select from a list of “large shade trees,” which includes species like Bur Oak or American Beech. 

Depending on the property, mitigation costs can get steep. Residents estimate the Oak removed on Sheridan was 52 inches in diameter. A tree that size would add up to a mitigation payment of more than $41,600 (the owner of the home, Li Wenrui, said he hasn’t decided whether he will tear down the home and build a new one, but if he does and the bylaw applies, he said he plans to replant as many trees as possible and pay any remaining mitigation). But as Lexington has become more expensive, some worry that tree payments are negligible compared to the returns developers can earn on a new-build mansion. The median list price for a home in Lexington is $2.4 million, according to the real estate site Realtor.com, and the average home value price is $1.4 million, according to Zillow. 

“We’ve made it very expensive to cut down and replace trees. But that’s still a drop in the bucket compared to the profits that are being made on these houses,” said Sofen. 

The DPW does not keep records of the fines it has levied against developers for not complying with the bylaw, but those, too, are nominal, at $50 per violation for a first offense, $100 for a second offense and $200 for third and subsequent offenses. 

As Lexington home prices have climbed, so too have concerns about the town’s adherence to the bylaw’s requirements. The worries are threefold. Alleged lapses in enforcement mean the town loses out on revenue that would be collected from developers. Tree cutting means a loss of environmental benefits (including wildlife habitat and carbon sequestration), as well as a perceived change to Lexington’s historically leafy streets. 

“It seems like it’s development at any cost,” said Dan Miller, a resident who helped organize a “Statement of Concern for Lexington’s Trees,” which has garnered more than 1,000 signatures.

Sofen argues that trees are an important buffer against climate change. Areas with more tree canopy retain less heat, and extreme heat days in Middlesex County are expected to increase between now and 2050. Trees also absorb carbon as they grow, acting as a natural carbon sink. 

“It’s not only a matter of money, it’s also a matter of preserving the environment,” said Mehr.

But money plays a role. Lexington collected $470,181.10 in mitigation payments between January 1, 2020 and July 14, 2023, according to records provided to the Observer. Gerry Paul, a member of the Tree Committee, believes that the town has missed out on more than $600,000 due to faulty calculations and collections. In August, Paul submitted a complaint to the town regarding “irregularities” in enforcement of the bylaw. 

Pinsonneault at the DPW — who helped develop the original bylaw — agrees that there are some properties where mitigation may have been miscalculated, but he says the sums the town has collected are “fairly accurate.” He said the $600,000 calculation did not always take into account when town government began implementing certain changes to the bylaw — including the amount paid per inch of tree removed and the multiplier for large trees — or conversations that happened onsite, which can impact the final mitigation calculation. 

“I do not think it’s anywhere near that amount of money,” said Pinsonneault. “What you can see on the plans and what you think that translates to is not necessarily what occurred in the field or what was collected.” 

But Pinsonneault readily admits that the town’s record-keeping system does not capture sufficient information. The town has identified 24 properties it plans to re-examine to determine if it’s possible to pursue further mitigation payments. 

“Some things have been missed,” he told the Observer. “Certainly nothing that was done with malice or anything like that, other than, these things got missed.”

The Lexington Observer analyzed 114 residential properties for which Lexington issued building or demolition permits in 2020 that received a “Certificate of Occupancy” between 2020 and 2023. Online permit records for 70 of those properties did not include details on tree removals, making it difficult to determine how many removals, if any, took place (builders were not always required to submit detailed tree information; amendments approved at the 2021 town meeting aimed to change that). The DPW does not consistently keep records of its final inspections or site visits, where it verifies the number of trees removed and replanted to determine how much mitigation is required. Without these records it is difficult to determine how fees have been calculated.

For the 44 properties that did include information about tree removals, more than a dozen showed discrepancies between plans submitted at the beginning of the process and after a home was built. Before a builder receives a Certificate of Occupancy, those plans should be reconciled to determine proper mitigation payments, according to the DPW. Records for several properties reviewed by the Observer showed tree removals that did not appear to match mitigation payments, according to DPW deposit records. At a property on Bertwell Road, for instance, the tree application showed one tree slated for removal. The final plan appeared to show that ten trees had been removed. No mitigation payment was received, according to DPW deposit records (a plot plan the department provided to the Observer shows several trees marked as hazardous, which do not require mitigation. This property is among those the town is re-examining). 

Overall, the town’s record-keeping system is opaque, with little uniformity in how developers report tree removals. And builders are only responsible for trees cut within three years of the date that they apply for demolition or new construction permits. The town does not currently have a standard way to report tree removals to determine if they took place outside that window.  

Pinsonneault said the department is in favor of capturing more information in the permit process.

“We didn’t have a great record-keeping system beforehand, and that’s what we’re working on, to ensure that everything gets captured and is transparent,” said Pinsonneault.

The DPW introduced a new permitting system this summer, which Pinsonneault said he hopes will provide clearer documentation. 

“They handle it onsite. But now what we’re requiring is that that is documented,” he said. 

Thus far, both Paul and Sofen say it’s too soon to tell whether the new system will make it easier to calculate payments or produce more transparent records.

Paul and Sofen have filed reports with the Tree Committee that point out issues with certain property records or payments. 

Both groups, though, say they want to move forward to improve processes related to tree removals. 

To do so, Pinsonneault says the department needs more staff or resources to ensure that it can fully evaluate applications and carry out site visits. Over the last two fiscal years the town has not approved that funding, he said, but Pinsonneault plans to request it again for the upcoming year. 

Paul, though, disputes that the lack of resources is at fault. “Many of the irregularities would have required minimal or no time to get right,” he said in a statement emailed to the Observer.

Residents are also expected to consider new bylaw changes at town meeting. 

“We need to strengthen the bylaw,” said Sofen. “There is no reason why we shouldn’t regulate trees given all the good that they do for the public.”