Petitioners seek stricter tree‑preservation bylaw; Town Counsel flags constitutional questions

Petitioners urged the Select Board to support a broad rewrite of Brookline’s tree‑preservation bylaw that would require permits for any tree 6 inches DBH or greater on any property type, substantially increase mitigation requirements (replacement inches or a larger payment into the tree fund) and require protective fencing around critical root zones during construction.

Speakers for the petitioners — including Alisa Plazan and Olivia Fisher Fox of Mothers Out Front and other neighborhood advocates — argued mature trees provide outsized climate benefits, store carbon at scales that small seedlings cannot match, and are being lost under Brookline’s narrow current bylaw. Petitioners proposed mitigation tiers keyed to trunk diameter and offered an option to pay into the town tree fund when on‑site replacement is impractical.

Town staff and Select Board members raised pragmatic concerns: enforcement would require additional staffing (petitioner and staff estimates ranged from two-plus FTEs for administration and inspections), the town currently has limited data on removals and the existing bylaw had produced few mitigation payments because of its narrow triggers. Sustainability staff noted the existing bylaw has been in effect less than a year and the town has not yet recorded contributions to the tree fund under that regime.

Town Counsel Joe Kalinian told the board he had provided a memo outlining potential constitutional issues centered on regulatory takings and the legal test for exactions (Nollan/Dolan/CTS trilogy): to require a property owner to pay a high mitigation fee or make an equivalent dedication to keep using property the town must show an essential nexus and rough proportionality between the exaction and the public harm. Counsel said petitioners would need to provide robust evidence tying the proposed fee levels to the public benefit to withstand a legal challenge.

Select Board members and petitioners acknowledged amendments were likely as the proposal advances. The hearing produced requests for data and modeling, including comparisons to Cambridge and Newton’s mitigation regimes and clearer specifications of exemptions for hazardous, dead or diseased trees and for small, constrained lots. The petitioners said they would refine language and work with staff and the Advisory Committee on proposed edits; the hearing will continue in subcommittee.