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Town attorney urges narrow, documented mitigation fees in proposed tree bylaw
Summary
At a Tree Preservation Planning Committee meeting, legal adviser Chris Heath cautioned the committee that mitigation fees and blanket prohibitions on tree removal carry federal constitutional risks and recommended building a clear record tying any fee to actual impacts.
Chris Heath, town council, told the Tree Preservation Planning Committee that any new tree bylaw that imposes mitigation fees or broadly forbids tree removal must be carefully framed and documented to avoid federal takings claims. "Any mitigation fee imposed by a tree bylaw needs to have a demonstrated nexus to the impacts of the tree removal, and be roughly proportional to the impacts of the tree," Heath said during the committee's meeting.
Heath said Massachusetts towns commonly send proposed bylaws to the state attorney general for review of consistency with state law, but that the attorney general does not adjudicate federal constitutional takings claims. He warned the committee that federal courts in other states have rejected mitigation fees that…
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