Town attorney urges narrow, documented mitigation fees in proposed tree bylaw

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 could not be shown to relate to actual removal impacts. "If a fee is not sufficiently connected to the impacts of actual tree removal, that fee will run afoul of federal takings," Heath said.

The committee needs to decide whether its draft will focus narrowly on new construction or apply more broadly, Heath said. He noted the committee's earlier direction to limit the bylaw, at least initially, to tree removal tied to new building lots rather than to ordinary homeowner pruning or removal. "If we require preservation so much on a particular lot that it frustrates development allowed by zoning and other regulations, you risk a takings claim," Heath said.

Committee members pressed Heath on whether fees could ever be defensible. He advised preparing a written rationale and technical support in advance: a memo or appendix that documents how the fee amount was selected, what impacts the fee is meant to mitigate, and how the fee is roughly proportional to those impacts. "A memo to the file or to the record from this committee as to how we all came up with the amount of the fee and why we think it's defensible ' would be well worth the time," he said.

Heath pointed to examples the committee has reviewed, including the Wellesley approach, where a per-caliper mitigation schedule is published and applied as inches-to-dollars. He suggested including an appendix or exhibit showing the fee schedule and the committee's analytic rationale, rather than leaving that explanation only to oral history.

The committee agreed that narrowing the initial scope to tree removals associated with lot clearing for new construction would reduce constitutional exposure and make fee justification easier. Members also asked Heath about other legal design choices, including whether the bylaw should be drafted as a zoning bylaw if it uses setback concepts. "If it acts like a zoning bylaw, it should be a zoning bylaw," Heath said.

The meeting closed without formal action on a draft text; members asked staff to prepare a working draft based on the Wellesley model and to assemble supporting documentation that could accompany a fee schedule and defensibility memo.

The committee plans to review a draft at its next meeting and to ask staff for an appendix explaining the proposed fees' nexus to impacts.