Select Board Sides With Tree Warden To Prohibit Removal Of Trees

In a pair of disputes over whether private property owners can cut down so-called “town trees” on their land, the Select Board on Wednesday sided with Nantucket’s tree warden and ruled that the trees may not be removed.

In one case, a 70-year-old catalpa tree on York Street located on a vacant property where developer Jeff Kaschuluk intends to build a new home had been targetted to be removed before neighbors, and then the town Tree Committee, objected.

In the other case, a 70-year-old honey locust tree on Orange Street located in front of the new Ezia Athletic Club next to Cumberland Farms had also been slated for removal, despite the objections of the town tree warden.

In both instances, the property owners had appealed the decision of Nantucket Tree Warden Dave Champoux, who ruled that catalpa and the honey locust were “town trees,” a designation that grants them special protection regardless of the fact that they are located on private property.

“We’ve maintained, and that’s the reason for the denial of the request, we really believe that these are town trees,” Champoux said. “The trees certainly date back to a time when the town was planting trees on private property because it was a better place to be planting trees.”

What is a “town tree”? According to the town code, a tree must meet at least one of the following criteria to earn that designation:

• The tree was purchased, or its planting was paid for, by the Town
• The tree stands on or has its trunk partially on Town-owned property
• The tree was donated or otherwise conveyed to the Town
• The tree has been maintained more than once by use of Town funds, equipment or personnel during the last 20 years, with the visits separated by more than one year
  

The catalpa tree on York Street wasn’t planted by the town, is located on private property, and was never donated or conveyed to the town. But both Champoux and town arborist Dale Gary said that it has been maintained through the town’s tree maintenance program on several occasions, thereby qualifying it as a town tree based on meeting that single criteria for such a designation.

Kaschuluk and his attorney Arthur Reade argued that Gary and Champoux had not proven that the tree meets the criteria outlined in the town bylaw to qualify it as a town tree. A previous property owner was adamant that the town had never worked on the tree, they said, and there is no record of that work having ever been completed. There was also no medallion attached to the tree indicating its town tree designation, and it was not identified on an online GIS map of town trees that was accessed from the town web site, they argued. Finally, Reade said Kaschuluk had gone to the DPW to ask about the status of the tree, and was told by an administrative assistant that it was not a town tree.

Kashuluk relied upon that information as part of his plan to buy and develop the property, Reade said.

The town needs to “enable (property owners) to be put on notice rather than being led into a situation where they’re basically walking into a trap,” Reade said. “They do their due diligence and there’s no way of finding out they're running into a problem. I’m not suggesting people like Dave or Dale, and I have the highest respect for both of them, could be interested in laying a trap for anyone, but the fact is this is the effect of what’s happened here.”

Reade concluded: “I think that that’s frankly, an abuse of governmental power. It’s arbitrary, capricious, and should be overturned.”

Champoux emphasized that Kashuluk should have come to him if there was a question about the status of the trees.

“It seems like it’s almost like the lowest hanging fruit here. Hear what you want to hear and disregard the rest without going the route of finding out. I’ve been the tree warden for a longtime and he certainly could have asked me. Jeff Kaschuluk knows I'm tree warden. He knows...I suggest Mr. Kaschuluk downsize the project. Make a smaller house. Go back to the drawing board.

The Select Board, while acknowledging the town’s existing system for identifying and sharing information about town trees is deeply flawed, voted unanimously that decision made by Champoux and the town Tree Committee had been reasonable considering the information and rules they were operating under. They had not acted in an arbitrary or capricious manner, Select Board members said.

“It meets the criteria, therefore it’s a town tree,” Select Board member Brooke Mohr said.

While they voted in both cases to attempt to preserve the trees, there was an acknowledgement that if a homeowner or business really wants to cut down a tree on private property, the penalty was merely a one-time fine of $300.

On Orange Street, Ezia Athletic Club owner Isaiah Truyman brought a similar case to the Select Board for adjudication. The 70-year-old honey locust tree on his property could have catastrophic impacts to the historic building at 117 Orange Street and its occupants should it topple in a storm. The tree is located in a flood plain, Truyman added, and there was simply no record or documentation that the honey locust met the criteria to be designated as a town tree.

Champoux told the Select Board there was clear evidence the honey locust was a town tree.

“I don’t think there's any question by the current owner of the property that it is a town tree,” Champoux said. “He just doesn't like it. He’s saying it's a determinant to his building...I think it’s a no-brainer. This should not be allowed, pure and simple. It’s a very healthy tree. He contends it’s diseased or dying, but that’s not the case.”

Truyman was unsparing in his criticism of the town’s existing system and record-keeping for town trees, calling it “borderline un-American.”

“Where is the document?” Truyman asked the Select Board. “The town is obligated to provide written permission from the owner at the time granting permission to plant a tree and I haven't seen anything. My rights as a taxpayer are being violated. I went through everything Jeff had to do. I went to the town, got all the records before I bought it, I looked on the map, it’s not on the map, there’s no medallion on the tree, there's no records showing anything in town hall. I’m sorry but that’s not OK. I’m playing by the rules, I feel that the tree committee ought to be held to the same standard.

“With all due respect, it’s borderline un-American in my experience and I'm very upset,” he said.

This time the Select Board voted 4-1, with Bridges dissenting, to uphold the tree warden’s decision.

Both Truyman and Kaschuluk have the option of pursuing further legal action in Nantucket Superior Court.