The town of Winchester finds that mature trees have aesthetic
appeal, contribute to the distinct character of certain neighborhoods,
improve air quality, provide glare and heat protection, reduce noise,
aid in the stabilization of soil, provide natural flood and climate
control, create habitats for wildlife, provide traffic calming, enhance
property values and provide natural privacy to neighbors.
This bylaw is enacted for the purpose of preserving and protecting
public shade trees pursuant to the Massachusetts General Laws, Chapter
87 and to protect trees on municipal property. The provisions of this
bylaw, when pertaining to private property, apply only when there
is concern or threat of unapproved maintenance or removal of a public
shade tree, which is located in the public way or on the boundaries
thereof and to permit the town to act, with the permission of the
landowner or after obtaining a warrant, to remove a privately owned
tree or a portion thereof which is a public safety hazard and a danger
to the residents of the community.
To achieve these purposes, this bylaw relies on the Winchester
select board, as street commissioners and as the public entity who
oversees the powers of the Tree Warden(s), in accordance with MGL
Chapter 87, Section 2. This bylaw also relies on the Permanent Street
Tree Committee, which was established in 2009 and empowers the committee,
in conjunction with the tree warden, to work with the select board
to regulate the removal and replacement of trees in certain circumstances,
and to promote the planting and protection of trees throughout the
town.
It is desirable that the town plant more trees than are removed
to compensate for tree losses and the length of time to maturity.
(a)
SELECT BOARD
CALIPER
PERMANENT STREET TREE COMMITTEE
PERSON
PUBLIC SHADE TREE
PUBLIC WAY
TREE MANUAL/RULES AND REGULATIONS
TOWN TREE
TREE REMOVAL
TREE WARDEN
UTILITY
When used
in this bylaw, the following definitions shall apply:
An elected body of five individuals tasked with oversight of the public shade trees under Chapter 87, Section 2 and as otherwise described in the town of Winchester Code of By-laws, Chapter 3.
Diameter of a tree trunk (in inches) measured six inches
above the ground for trees up to and including four-inch diameter,
and 12 inches above the ground for larger trees.
A committee, consisting of representatives from the Planning
Board, Town Forest Committee, Conservation Commission, Design Review
Committee and Department of Public Works/Tree Warden, who are appointed
by the select board to oversee and advise on street tree planting,
procedures and tree removal within the town of Winchester.
Any person, firm, partnership, association, corporation,
company or organization of any kind including public or private utility
and municipal department.
All trees within a public way or on the boundaries thereof
including trees planted in accordance with the provisions of M.G.
L. Chapter 87, Section 7 shall be public shade trees; and when it
appears in any proceeding in which the ownership of or rights in a
tree are material to the issue, that, from length of time or otherwise,
the boundaries of the highway cannot be made certain by records or
monuments, and that for that reason it is doubtful whether the tree
is within the highway, it s hall be taken to be within the highway
and to be public property until the contrary is shown.
The entire parcel of land intended or designed to provide
access and rights of passage extending from the boundary of one parcel
to the boundary of another parcel. The public way may include a street,
drainage, curbing, sidewalk(s), trees and/or shrubs, street lights,
bicycle paths and other amenities that allow vehicles, bicycles and
pedestrians to travel within it.
A manual, consisting of rules and regulations, prepared by
the Tree Warden and the Permanent Street Tree Committee, that outlines
the town’s policies and procedures on how to plant, maintain,
inventory and manage the town’s public shade trees. Under this
bylaw, the select board may hold a public hearing and adopt rules
and regulations in accordance with M.G.L. Chapter 87, Section 2.
Any tree within a public park or open space under the jurisdiction
of the select board acting as Park Commissioners, on public school
grounds, or on any other townowned land, except for Wildwood Cemetery,
which is overseen by the Wildwood Cemetery Advisory Committee, an
appointed committee who are advisory to the select board.
The cutting down of any public shade or town tree and all
other acts which cause the actual removal or the effective death of
a public shade or town tree, including but not limited to, excessive
or improper pruning, excavation or construction damage.
The Department of Public Works director shall serve as the
Tree Warden unless another designee is appointed by the Winchester
select board.
For the purposes of this bylaw “utility” shall
mean a company engaging in the distribution of electricity, gas, telecommunications,
water and sewer or for the collection of drainage or owning, operating
or controlling distribution facilities; provided, however, that a
distribution company shall not include any entity which owns or operates
plant or equipment used to produce electricity, steam and chilled
water, or an affiliate engaged solely in the provision of such electricity,
steam and chilled water, where the electricity produced by such entity
or its affiliate is primarily for the benefit of hospitals and nonprofit
educational institutions, and where such plant or equipment was in
operation before January 1, 1986.
(b)
The Permanent
Street Tree Committee and the Tree Warden may provide other such definitions
or terms in rules and regulations, approved by the select board, deemed
useful to implement this bylaw.
(a)
Applicability.
The circumstances under which the tree protection, removal and
replacement regulatory process delineated in this bylaw shall apply
are as follows:
(1)
Proposed
cutting (trunk, limbs or roots) of existing public shade trees on
public ways or of town trees on town-owned (or leased land being used
as a public facility) by any person.
(2)
Proposed
utility maintenance, as follows:
(i)
A
utility may, or at the request of the tree warden shall, submit an
annual vegetation management plan describing the maintenance work
to be performed in a municipality. The plan shall include, but not
be limited to, a map of the circuits where the maintenance work will
be performed, the tree maintenance standards that will be followed
and any foreseeable variance from those standards. The plan shall
comply with local ordinances and regulations. The plan shall be submitted
not less than 90 days prior to the date the utility proposes to begin
its maintenance work. Upon receipt of the plan, the tree warden, or
a designee thereof, shall notify the utility within 60 days, in writing,
whether or not the plan has been approved. Upon receipt of written
notification that the plan has been approved, or approved with modifications
agreed to by both parties, a utility shall be exempt from the requirements
of M.G. L. Chapter 87, Sections 3 and 5 for the work described in
the approved plan.
(ii)
A utility may, or at the request of the tree warden shall, submit
an annual hazard tree removal plan describing hazard tree removal
work to be performed in a municipality. The plan shall include, but
not be limited to, the specific trees that the utility has identified
as a hazard and proposes to remove. The plan shall comply with local
ordinances and regulations. The plan shall be submitted not less than
90 days prior to the date a utility proposes to begin tree removal.
Upon receipt of the plan, the tree warden, or a designee thereof,
shall notify the utility within 60 days, in writing, whether or not
the plan has been approved. Upon receipt of written notification that
the plan has been approved, or approved with modifications agreed
to by both parties, the utility shall be exempt from the requirements
of sections 3 and 5 for the work described in the approved plan.
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If a tree warden fails to notify a utility whether a vegetation
management plan or hazard tree removal plan has been approved within
60 days of the warden’s receipt of the plan, the utility may
request a decision by the select board.
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Notwithstanding approval of a vegetation management plan or
hazard tree removal plan, a utility shall notify a tree warden, in
writing, not less than 14 days prior to beginning maintenance work
or tree removal work in a municipality. If a local ordinance or regulation
requires more than 14 days notice, the utility shall comply with such
ordinance or regulation. The notice provided shall include the date
on which the utility will begin work and the phone number of the person
or persons supervising the work in the field.
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The utility shall provide to the state forester, or such other
person or agency as designated by the secretary of energy and environmental
affairs, a copy of any annual vegetation management plan or hazard
tree removal plan and a copy of the approval or denial letter from
the applicable tree warden. The state forester, or such other person
or agency as designated by the secretary of energy and environmental
affairs, shall provide the utility an acknowledgment of receipt of
such plans and determinations in any manner approved by said secretary.
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The utility shall annually submit to the state forester’s
office a set of utility tree maintenance standards and specifications
and evidence that these standards have been adopted by the utility
company. These standards and specifications shall conform with: American
National Standard Institute A-300; American National Standard Institute
Z-133; and National Electric Safety Code 218 Tree Trimming and OSHA
29 CFR Part 1910 Line Clearance Tree Trimming Operations. The state
forester, or such other person or agency as designated by the secretary
of energy and environmental affairs, shall make these standards and
specifications available to the public on their websites or other
accessible locations and shall accept and maintain a publicly accessible
record of comments received relative to the standards and specifications
and shall transmit the comments to the utilities.
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(b)
Nonapplicability.
This bylaw shall not apply in any instance where the Planning
Board, the Zoning Board of Appeals, Conservation Commission, the Department
of Public Works and state agencies have established jurisdiction,
or on private roadways, including but not limited to, the following:
(1)
The Planning
Board regulates the planting, retention and/or replacement of public
shade trees, by means of the board's authority over subdivision of
land (M.G. L. Chapter 41) and/or the administration of unaccepted
streets;
(2)
The Zoning
Board of Appeals regulates planting, retention and/or replacement
of on-lot trees on private residential land, where said property is
subject to a special permit under the zoning bylaw, or issues and/or
recommendations emanating from a site plan review development, under
the zoning bylaw;
(3)
The Conservation
Commission regulates the retention and/or replacement of on-lot trees,
by means of administering the Wetlands Protection Act (Chapter 131
and 310 CMR) within jurisdictional areas of the property;
(4)
The Department
of Public Works in its ongoing routine maintenance of public shade
trees as provided by Section 5 of M.G. L. Chapter 87, which allows
trimming, cutting and/or removing of trees, less than one and a half
inches in diameter one foot from the ground and bushes, standing in
public ways; and as ordered, the removal of trees and shrubs if deemed
to obstruct, endanger, hinder and incommode persons traveling thereon;
(5)
Any tree
trimming and/or removal on a private way;
(6)
The select
board has the ability to approve the cutting and /or removal of a
tree or shrub in accordance with M.G.L. Chapter 87, Section 5.
(7)
All trees,
shrubs and growths within the state highways, in accordance with M.G.L.
Chapter 87, Section 8. The department of highways shall be responsible
for the planting, maintenance and control of all vegetation located
within state highways.
The Department of Public Works director shall serve as the tree
warden unless another designee is appointed by the select board.
(a)
The duties
or responsibilities of the tree warden or his designee shall conform
to General Law Chapter 87 and shall include, but not be limited to,
the following as may be further specified in this bylaw:
(1)
Management
of all trees within public rights-of-way and on the boundaries thereof
and adjacent to public buildings and commons; care and control of
trees on town property if so requested by the select board, and on
town land owned by other departments such as schools, recreation and
conservation, if so requested by the respective department and approved
by the select board;
(2)
Expending
funds, in coordination with the Permanent Street Tree Committee, appropriated
for planting and maintaining of trees on town land under the jurisdiction
of the tree warden;
(3)
Determining
whether trees qualify as public shade trees or town trees, in accordance
with M.G.L. Chapter 87 and this bylaw;
(4)
With
recommendations from the Permanent Street Tree Committee, granting
or denying and attaching reasonable conditions to all permits required
under this bylaw. The Tree Warden shall have the right to determine
conditions of approval and/or mitigation measures such as replacement
of trees, payment of tree removal or mitigation payments as appropriate;
(5)
Work
in conjunction with the Permanent Street Tree Committee to seek grants
or other assistance concerning the preservation and maintenance of
trees in Town;
(6)
Development
of rules, regulations, tree inventory, manuals and other data, in
conjunction with the Permanent Street Tree Committee, to carry out
the purposes and intent of this bylaw for approval and promulgation
by the select board;
(7)
Enforcement
of this bylaw;
(8)
Appointment
or removal of deputy tree wardens.
(b)
Moreover,
the select board may authorize the tree warden to undertake other
responsibilities consistent with the purposes and intent of this bylaw.
(a)
The town
shall have a Permanent Street Tree Committee that consists of five
members, including representatives from the Conservation Commission,
Design Review Committee, Planning Board and Town Forest Committee
as well as the town’s tree warden, as appointed by the select
board. For the first appointments, two members will serve one-year
terms; two members will serve two-year terms; and one member shall
serve a three-year term. All members up for renewal will then serve
three-year terms. The committee shall be staffed by the town planner
and the Tree City USA liaison, as appropriate.
(b)
The tree
committee shall have the following duties and responsibilities as
may be further specified in this bylaw:
(1)
Development
of rules, regulations, tree inventory, manuals and other data, in
conjunction with the tree warden, to carry out the purposes and intent
of this bylaw, for approval and promulgation by the select board;
(2)
Public
education and coordination with other town committees and civic groups
to promote the purposes and intent of this bylaw;
(3)
Work
in conjunction with the Tree Warden to seek grants or other assistance
concerning the preservation and maintenance of trees in town.
(a)
Scope. A
public shade tree or town tree may not be cut, pruned, removed or
damaged by any person or the town until and unless the Tree Warden
issues a written permit pursuant to this section.
(b)
Procedures.
Any person seeking to prune or remove a public shade tree or town
tree shall submit a written application to the Tree Warden in accordance
with any Rules and Regulations or Tree Manual voted by the select
board;
(c)
Notification.
Prior to the issuance of a demolition or building permit, the Building
Commissioner shall notify the Tree Warden of the proposed demolition
and/or construction so that the Tree Warden may review plans to identify
if the work will require cutting, pruning or removal of a public shade
tree or trees or town tree, that are subject to the provisions of
this bylaw;
(d)
Qualification.
The Tree Warden shall determine if a tree qualifies as a public shade
tree or town tree. In event of dispute between the applicant and the
Tree Warden as to the status of the tree, the burden of proof shall
be the responsibility of the applicant and a survey may be performed
by a Professional Land Surveyor registered in the Commonwealth of
Massachusetts showing the boundary of the public way or town property
and the location of the tree;
(e)
Hearing.
When the removal of any nonhazardous public shade tree or town tree
is proposed, the Tree Warden shall generate a legal notice, post a
notice on the tree, and post the legal notice in two public locations.
He shall then hold a public hearing on applications for removal, in
accordance with the provisions outlined within General Law Chapter
87. When the application is made by a person, the applicant is required
to pay for a legal notice to be placed in a local newspaper for two
consecutive weeks, the first advertisement being not less than 14
days prior to the hearing. The applicant is also required to notify
in writing all parties of interest within 300’ of the tree proposed
for removal.
(f)
Decision.
Based upon the hearing, a permit issued by the tree warden, with consultation
of the Permanent Street Tree Committee, shall issue a written decision
and specify schedules, terms, and conditions, including requiring
the planting of replacement trees, requiring police details for tree
removal, costs of tree removal and other pertinent conditions that
protect the health, safety and welfare of the community;
(g)
Final Determination.
When objections are made in writing by one or more persons at or before
the public hearing for removal of a nonhazardous public shade tree
or town tree, the Tree Warden shall refer the matter to the select
board for a final determination, in accordance with M.G.L. chapter
87, Section 4;
(h)
Expenses.
An applicant who applies to remove a nonhazardous public shade tree
or town tree may be responsible for the following expenses:
(1)
Paying
for both the costs of legal advertising in accordance with M.G.L.
Chapter 87, Section 3 and notification requirements as set forth in
this bylaw;
(2)
Cost
of inspection of tree by an arborist certified by the Massachusetts
Arborists Association or the International Society of Arboriculture,
or any successor of either organization, if required by the Tree Warden;
(3)
Cost
of removal of tree and stump, including the removal of all debris
and proper filling of stump hole;
(4)
Cost
of tree protection, fencing, erosion and sediment controls and any
other measures deemed by the Tree Warden to be required for health,
safety and the protection of the environment;
(5)
Planting
of replacement trees or contributions to the fund, as deemed by the
Tree Warden;
(6)
Cost
of police traffic details, repair of street surfaces, sidewalks, grass
plots and road shoulders, if required;
(7)
All other
costs related to the removal and replanting; and
(8)
All costs
are to be estimated by the Tree Warden and the applicant’s payment
is to be received by the Tree Warden prior to any work being performed.
(i)
Planting
of trees on public land.
Any person seeking to plant
a tree on public land under the jurisdiction of the tree warden must
obtain written permission from the tree warden. Such permission may
specify schedules, terms, and conditions as deemed appropriate by
the tree warden. Public shade trees planted in accordance with Section
7 of M.G.L. Chapter 87 may be planted upon adjoining land at a distance
not exceeding 20-feet from the layout of such public way for the purposes
of improving, protecting, shading or ornamenting the public way. If
a public shade tree is to be planted within 20-feet of the public
way, written consent of the property owner to plant on private property
shall first be obtained.
(j)
Collection
of voluntary contributions under this bylaw shall be deposited into
a fund designated for such purposes or into the Peter Van Aken tree
fund. The tree warden, with input from the Permanent Street Tree Committee,
will request use of these funds for tree planting, transplanting,
and other tree-related needs. The request to expend these funds shall
be subject to the approval by the select board.
(k)
Trees may
be planted in honor of an individual or group of individuals. The
request to plant a tree in honor of an individual or individuals shall
be subject to the approval by the select board and shall be planted
in accordance with the Permanent Street Tree Committee’s planting
regulations and guidelines. Donations are encouraged to include the
costs of the tree material as well costs of planting.
Provisions of this bylaw shall not apply to:
(a)
Trees less
than one and half inches in diameter measured 12-inches from the ground
and bushes standing in the public way;
(b)
Emergency
projects necessary for public safety, health and welfare as determined
by the Director of Public Works/Tree Warden. Where storm damage has
occurred, the Tree Warden is not obligated to remove a public shade
tree that has fallen on private property;
(c)
Trees that
are hazardous as determined in writing by the Tree Warden. In the
event the Tree Warden determines a tree located on private property
presents a safety hazard to the public way or town property, the Tree
Warden will notify the owner(s) of the need to immediately act to
address the hazard. In the event that the owner(s) do not act in a
time appropriate manner, the Tree Warden may, with the permission
of the landowner or after obtaining a warrant, take action to remedy
the hazard by having the tree trimmed or removed and charge the owner
for the expense of the tree trimming or removal;
(d)
Trees identified
by the Commonwealth that pose a risk of disease or insect infestation.
(a)
Any person
violating this bylaw is subject to the penalties under this bylaw,
Massachusetts General Law Chapter 87 (for violations concerning public
shade trees) and other legal enforcement action by the town. The Tree
Warden is authorized to enforce the provisions of this bylaw in accordance
with Massachusetts General Law, Chapter 87. Any other legal enforcement
action shall be determined by the select board in consultation with
the Permanent Street Tree Committee, the Tree Warden and Town Counsel.
(b)
Each instance
in which a town tree or a public shade tree is removed without a tree
permit shall constitute an offense under this bylaw. When town trees
or public shade trees have been removed without a permit, mitigation
conditions may be imposed and the payment of fines up to $500 and
as specified in M.G.L. Chapter 87, Section 6 may be imposed.
(c)
If mitigation
and the payment of fines are completed in due time as determined by
the Tree Warden, the project will be approved. If not completed, then
each day beyond the determined and agreed upon completion date shall
constitute a new and separate offense.
The select board may promulgate, after public notice and hearing,
rules and regulations or “tree manual” to effectuate the
purposes and intent of this bylaw. Failure by the select board to
promulgate such rules and regulations shall not act to suspend or
invalidate the effect of this bylaw.
If any section, paragraph or part of this bylaw is for any reason
declared invalid or unconstitutional by any court, every other section,
paragraph and part shall continue in full force.
Nothing in this bylaw shall be construed to restrict, amend,
repeal, or otherwise limit the application or enforcement of existing
provisions of the Winchester Code of Bylaws or Commonwealth of Massachusetts
laws.
