I am Matt Fahey, And I Speak for Property Rights… (Not the Trees)

Former City Councilman Matt Fahey takes a chain saw to the new proposed changes to Rye's tree law. He uses the word "abrogation" – watch out, you might get hit with a falling SAT word.

What do you think? Leave a comment below.

by Matt Fahey

At last Wednesday’s city council meeting, an open hearing was held to allow the public to discuss recently proposed changes to Rye’s “tree law”. A bit of background: Since the early 90’s, Rye has had restrictions on trees in “setback areas” on private property that abut all public roads and sidewalks. This is to ensure that any trees don’t have a negative impact on lines of sight for traffic, and don’t impede pedestrian or vehicular traffic.

What the suggested new law proposes is to require every property owner to seek permission from the town when they have a desire to remove any tree anywhere on their property greater than 8” in circumference, for any reason.  Additionally, all property owners will no longer have the freedom they currently enjoy when it comes to landscaping their property – you will need to obtain approval first from the city, and the city will ban certain horticultural selections as options. 

A small but vocal group of unelected individuals have drafted this law and are pushing the council to pass it.  Unfortunately, it seems the council hasn’t really made much of an effort to seek out and listen to the voice of the community, as many homeowners are still unaware of this proposal’s impact on property rights. Historically, private property rights have been defined as: 1) the right to control the use of your property, 2) the right to the benefits that accrue from your property, 3) the right to sell or transfer your property, and 4) the right to exclude others from access to your property. The proposed law impacts the first, second, and fourth points, with the potential for a material impact on the third.

Even Jonny Appleseed never made such a bold and naked land-grab as this.

As it stands, the proposal is rife with errors and flawed logic. For example, the law’s stated purpose is to address several concerns – flooding, better air quality, enhancing property values, providing a natural habitat for wildlife, alleviation of global warming – all worthwhile goals.  But, as part of the process of passing any new law, the City Planner is required to perform an Environmental Impact Study. In completing this study, the City Planner specified that passage of this law will have 1) no impact on groundwater quality or quantity, 2) no impact on air quality, 3) no  impact on other plants or animals, 4) no impact on aesthetics, and 5) no impact on drainage flow or surface water run-off.  The City Planner is, in essence, stating that this proposed law is not going to achieve its purpose – which begs the question, why is it even being considered for passage?

This is not to say that the new law will not have an impact. It most certainly will, both on your pocketbook and on your quality of life. You will be subject to new fees and new fines, in addition to new taxes necessary to pay for enforcement.

As property owners, we look at our homes as a refuge from the outside world, a place to be shared with family and friends of our choosing. For most of us, it is also our largest and most-cherished investment. We pay taxes to keep it safe from thieves and fire, and to keep it clean and orderly (with grateful thanks to the Police, Fire and Sanitation departments).  Like many in Rye, I have lived on my property, taken care of the structure and the surrounding environs. Over the years, I’ve removed several trees that were either sick or dying, threatened my home’s foundation, or were negatively impacting other plants through excessive shading or overgrowth.

Now I’m being told by a select few – none of which have ever stepped on my property, to the best of my knowledge – that they know better than me what’s best for my property, and for every other property owner in Rye.  Hearing the arguments for this law last Wednesday night, and reading the law in detail leads me to conclude this small group has willfully ignored the very real and inappropriate abrogation of property rights this law creates. Additionally, they are willing to play with the truth to achieve their ends. Reviewing just a handful of the comments:

• “This law will have no financial impact”.  Flat-out wrong – of course it will. Not only will you need to pay a permit fee (or a hefty $500 fine for each and every unauthorized tree removal), you’ll be required to place funds equal to the cost of the tree removal in escrow pending the “adequate removal” of the tree. Additionally, it will require more taxes – city staff will be required to perform more work, not just in issuing permits, but also to perform an enormous amount of follow-up, including two years of checking on the health and wellness of newly planted tree(s) to replace the removed tree(s). The City Planner’s assessment of the law clearly warns the city council that the additional responsibilities of enforcing the new law will “require adjustments in current service to accommodate these new demands”, adding that “staff will be required to inspect properties to confirm that mitigation trees were planted and survived for a period of two calendar years.” The Planner warns that the city will also invite lawsuits if it fails to issue a permit quickly to any homeowner interested in preventive maintenance.

• “If you have a dead tree, by all means, take it out”. Yes, it sounds so simple, but under the new law, you will be required to file for a permit, and then wait until the Tree Czar shows up. If and when he agrees the tree should be removed, you’ll then have to post money in escrow equal to the cost of the tree’s removal.  You’ll only get your money back if the Tree Czar determines the job was performed “properly” – and there’s no definition spelled out as to what is proper in removing the tree. Oh, yes – you’ll also be required to plant a replacement tree, but only one of an approved species… and the city will “monitor” the progress of the new tree’s health for a period of up to two years.

• “This is good for the community and good for property owners”. Au contraire. The City Planner’s assessment declares there is no impact, but property owner’s private property rights are taken away and given to unelected officials. Rarely does this work out to the benefit of the community, and never does it benefit the individual.“This is merely enhancing our current law”. The current law only covers the setback areas on properties abutting public thoroughfares, and does not require the planting of replacement trees. The new law clearly abridges existing property rights for the entire property, not just the setback. Taking away rights from the individual under the guise of “enhancing” an existing law is analogous to declaring an unauthorized foreclosure on a house as simply a change in one’s mortgage structure.  Sadly, only one city council member pointed out the clear distinction between the “enhancement” and a vast and unethical expansion. 

• “The City of Rye won a Supreme Court case back in 1963 which gives us the precedent and the right to pass this law”. In actuality, the Supreme Court refused to hear the cited case (People v. Stover), but the law did set the precedent that a municipality has the right to zone based on aesthetical considerations – though it was intended to disallow certain activities undertaken by a property holder widely seen as injurious to public health and an affront to visual beauty. It was not intended to dictate to property owners how they must landscape their properties, and what they can – and can’t – plant on their own property for their own enjoyment.

I firmly believe that individual property owners are best equipped and motivated to determine what is most appropriate for their parcel – not some City employee, and not some small group of unelected individuals with an ax to grind against their neighbor’s landscaping choices. I also don’t see any pressing need – indeed, there are more trees now in Rye than even 100 years ago. At the next city council meeting, the public hearing will conclude – I urge everyone to come tell the city council that you want them to protect your property rights, not take them away.