New legislation has been introduced to modernize Vermont's tree warden statutes and other statutes related to public trees. The draft bill was introduced in the House Committee on Agriculture and Forestry on January 14th, 2020. Based on witness testimony and Committee work, the bill was revised and this version of the bill was unanimously passed by the Committee members on March 12th. It will be introduced to the House floor later in March.
Areas Identified for Clarification in the Proposed Amendments
Vermont's tree wardens play a critical role in maintaining the health of public green spaces in our communities. Today, tree wardens are on the front lines of a host of environmental issues, such as managing the impacts of the emerald ash borer (EAB), the decline of aging urban trees, changes in the regional climate, effects of environmental stressors like natural disasters, and weaknesses in past municipal planning initiatives. Thus, the guidance and regulations placed on the duties of town tree wardens must be strategically outlined to allow public landscapes to flourish. Town officials, landowners, road crews, state officials, and tree wardens themselves have voiced growing concern to modernize the statutes with clear language that addresses modern municipal tree management.
The proposed tree warden statute amendments encompass six objectives:
- Define terms: Several key terms are lacking a definition including “public tree,” “hazard tree” and “public ways and places.”
- Create consistent language: There are several statutes that reference the management of roadside trees that are in conflict with the Vermont Tree Warden Statutes, including penalties and roles.
- Establish a hearing process: The statutes call for a public hearing when removing certain trees but does not define or guide the required process.
- Add reporting element: To further technical assistance to communities, establish reporting of tree warden appointments to the Department of Forests, Parks and Recreation.
- Support management of forest pests: To enhance the municipality’s ability to address forest pests as they relate to threats to public safety, the addition of language to support management of trees once a tree warden determines that a tree is infected or infested with a tree pest, or a municipality is within a State-defined infested area.
- Update state governance: To be consistent with other statutes, an update to the section on ‘Control of infestation’ to include reporting to, and recommendations from, the Commissioner of Forests, Parks and Recreation.
Recent Examples of Conflicts due to Lack of Clarity in the Statutes
Public Hearing Process:
In 2001, the Town of Holland selectboard sought to widen a half-mile stretch of class 3 town highway to accommodate large vehicles. To make the upgrades, the town needed to remove several trees. Since the trees themselves were not a hazard, the town tree warden was required to hold a public hearing. However, no hearing took place. The Vermont Supreme Court ruled that the tree warden had no authority to remove the trees without first holding a public hearing as it violated the landowner’s due process rights. A clear removal process for all public trees is needed.
In 2017, a farmer in Addison County removed a hedgerow in the public right-of-way along on his farmland. According to the tree warden statues, these trees are under the control of the tree warden and should not have been removed without a public hearing process and approval of the tree warden. However, the language in Title 19 (town highways) granted the abutting property owner the right to remove trees. The town has issued a fine of one million dollars to this landowner. As of early 2020, the ensuing legal battle has not yet been resolved. Consistency and clarity over management rights is needed.
Background of Vermont Tree Wardens
When the first European settlers arrived in Vermont, they found the land carpeted with forests. As they cleared the forests to create tillable farmland, little thought was given to the protection of the trees and the resources they provided. Trees were felled in the name of progress and by the middle of the nineteenth century, much of Vermont’s forests had been cleared.
It was in 1884 when the value of public trees began gaining recognition. That year, the General Assembly passed an act to encourage the planting of shade trees in public areas. Since 1904, Vermont General Law has mandated that all cities and towns in Vermont appoint a tree warden who is responsible for trees in public ways and places. The tree warden mandate is still in effect today under Vermont General Laws, Chapter 24, Section 1 and Section 106.
A tree warden is a person in charge of shade trees on public municipal land. The word “warden” was a common title for natural resource officials in the late 1800s. Being a warden signified a unique legal responsibility: to guard public resources against destructive forces that might include insects, diseases, or people themselves. As both manager and advocate, the tree warden must protect the trees and, where necessary, protect the public from the risk of diseased, injured, or dead public trees.
Vermont statutes continue to support community trees by requiring the appointment of a tree warden by each town and city to act as overseer of public trees, organizing and implementing tree planting, maintenance, and protection programs. Appointed by the selectboard, tree wardens have three major areas of responsibilities: to remove public or publicy-managed trees that cannot be saved, to salvage those that can be saved, and to implement a tree preservation program for the town. Tree wardens usually serve on a volunteer basis and work in concert with town tree boards or conservation commissions.