“To exist as a nation, to prosper as a state, and to live as a people, we must have trees.”- Theodore Roosevelt

February 26, 2004

Mayor, Council, and Planning Board Members:

It is with great pleasure that I submit to you what we, the members of the EnvironmentalCommission, consider to be a fair, reasonable, thorough, and comprehensive ordinance for the protection of trees within Byram Township. It represents years of research and hard workthrough the combined efforts of our Commission members, members of the Open SpaceCommittee, and private citizens of the Township.

This proposed ordinance has already been reviewed in its draft form by a Subcommittee ofCouncil, Environmental Commission, Open Space, and Planning Board members; and in anearly completed draft form by the Lake Mohawk Country Club, who have indicated theirsupport, and whose suggestions have been incorporated into the final draft. It has also beenthoroughly reviewed by the Township’s Attorney, Megan Ward, and her changes and suggestionsare reflected in this final draft as well.

This ordinance affords a high degree of protection to mature stands of trees within theTownship, yet allows property owners a means of sensible removal and management by:

• Exempting individual property owners who are clearing fewer than 5,000 sq. ft. of trees from their property.

• Allowing as much as seventy (70) percent of a property to be cleared by an owner with proper permissions.

• Exempting orchards, tree farms, and all “Farmland Assessed” properties covered under a current forest management plan.

• Allowing for pruning and maintenance, and the removal of any diseased, dead or dying tree on any property.

Byram has always been progressive, environmentally sensitive, and at the forefront of naturalresource protection within Sussex County. While researching existing laws of similar nature thathave been enacted in neighboring municipalities, we were shocked to see how far behind Byramis lagging with regard to tree protection. This is evident when viewing the partial list ofmunicipalities whose tree ordinances were used as a model for our own version (see the list atbottom of the Fact Sheet that follows this letter). As a point of reference, the ordinance beingproposed for Byram Township is very similar in scope and nature to that passed by SpartaTownship in the fall of 2002.

(continued next page)

Byram Township Environmental Commission10 Mansfield Drive • Byram Township, New Jersey 07874 • 973 347.2500

“Township of Lakes”

The need for the protection of our trees has been voiced loud and clear throughout ourcommunity. And the call for natural resource preservation grows daily as the importance ofprotection of our water quality and quantity becomes more apparent in the Highlands Region.By choosing to adopt this proposed ordinance into law, thus limiting the destruction of some ofByram’s most precious natural resources, you can make the bold statement that you arecommitted to help our community maintain its quality of life.

Now, more than ever, the time is right for the Township of Byram to create its own TreeProtection Ordinance.

We respectfully submit this ordinance to you with great enthusiasm, and extremely strongsupport for swift action towards passage by the governing body.

Dawn Oleksy, ChairByram Township Environmental Commission

cc: Doris FlynnRon GattiMary JohnsonKurt Senesky, Esq.Louis R. SlabyFrancis SmithCory StonerAnna WainrightMegan A. Ward, Esq.

FACT SHEET

The Need for a Tree Protection Ordinance in Township of Byram – February 26, 2004

“The presence of trees means improved water quality, resulting in less runoff and erosion. Thisallows more recharging of the ground water supply. Wooded areas help prevent the transport ofsediment and chemicals into streams.

- USDA Forest Service

• This ordinance creates controls to regulate the number of trees that can be removed from a property. It isdesigned to apply when a project must be presented to the Planning Board, or when more than 5,000sq. ft. will be disturbed. If enacted, this ordinance will prevent the clear cutting of large areas of lotswithin Byram. Besides being aesthetically unpleasant, excessive tree removal leads to drainage and erosionproblems, as well as other adverse environmental impacts. In consideration of the new New Jersey DEPStormwater Regulations, this is an increasingly important goal to be achieved within our Township.

“One acre of forest absorbs six tons of carbon dioxide and puts out four tons of oxygen. This isenough to meet the annual needs of 18 people.”

- U.S. Department of Agriculture

• Byram’s geographic location atop the New Jersey Highlands, straddling Interstate 80, and less than 50miles from one of the densest centers of population in the world, places our forests on the “front lines”of nature’s battle for clean air. Besides their ability to filter and retain runoff, our large, contiguous areasof forest act as a natural purifier of the air that we breathe.

“Healthy, mature trees add an average of 10 percent to a property’s value.” - USDA Forest Service

• As you read this ordinance, please note that exceptions include: Individual residential lots with removalof less than 5,000 sq. ft. of tree cover; tree farms; Farmland Assessed tracts over 5 acres; and removal ofdead, dying diseased or damaged trees.

• The argument of “Taking of Property Rights” has been used in past discussions of this ordinance. We,the members of the Environmental Commission, submit to you that this argument of property rightsisn't about advancing a legal or moral principle. It's about defending the ability to prosper at publicexpense without bearing any corresponding public responsibility. We believe that it is the duty of thegoverning body of this town to protect the rights of all property owners within Byram, and that anylimitations placed upon individuals by enacting this ordinance are far outweighed by the greater addedvalue to the community through the protection of its valuable natural resources.

“Trees can be a stimulus to economic development, attracting new business and tourism.Commercial retail areas are more attractive to shoppers, apartments rent more quickly, tenants staylonger, and space in a wooded setting is more valuable to sell or rent.”

- The National Arbor Day Foundation

• Byram Township is embarking on a new challenge – the creation of a Village Center which will requirenew residents and businesses. We will be competing with neighboring communities for these ratables,and will need all possible benefits to draw growth to our new Center. We believe a Tree ProtectionOrdinance will make Byram Township a more desirable place to locate a business and raise a family.

• While by no means a complete list, the following municipalities have enacted tree protection ordinancessimilar to the proposed Byram ordinance, with the date (if known) when the ordinance was passed.Morris County: Chatham Borough (2001); Chatham Township (1998); Harding Township (2001);Hanover (1993); Jefferson Township; Long Hill Township; Madison Borough; Mendham Borough;Mendham Township (2001); Mine Hill (2002); Morris Township; Mountain Lakes; Parsippany-TroyHills (1995); Randolph (1994); Somerset County: Bernards Township; Bernardsville Borough; Sussex County: Branchville; Sparta Township (2002); Stillwater Township (1974); Stanhope (1978); Warren County: Lopatcong Township (1982); Mansfield Township (1993).

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The argument is often made that we do not need a tree protection ordinancebecause we do not have a problem at this time. A look around many of ourolder, forested neighborhoods will show you that indiscriminate clear cutting ofindividual lots is already a problem within Byram Township, and creatingunpleasant aesthetics in what were once pleasant wooded neighborhoods.

Lee Hill Road - Lake Mohawk

Another argument is that this ordinance should only apply tosubdivisions and/or properties being considered for development andbefore the Planning Board.

Or that the allowable area for clearing be a proportion of theindividual lot’s “building envelope” for single lots. This will not solvethe problem of excessive or indiscriminate cutting.

When clear cutting by One Main Street LLC began, the propertyowner had NO plans before the Planning Board (they had beendenied weeks before) and it was at that time a “individual lot” ofover 80 acres. Given those circumstances, the clearing at this sitewould STILL have been legal.

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One Main Street property

The next three pages are proof positive that clearing of even moderately steepslopes for subdivisions, removing hundreds of trees and replacing them withlawns and pavement, create problems with both aesthetics and runoff...

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Ascot Manor

...requiring detention basins that are measured in acres rather than square feet,occupying entire subdivision back yards. Yet heavy downpours like those thattook place September 23, 2003...

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Ascot Manor

...still overwhelmed the basins, washing over a section of Sparta-Stanhope Road,and completely destroying a gravel driveway with quick and massive erosion.

Yet nearby, undisturbed sections of woodlands, with even steeper slopes, easilyabsorbed the runoff without damage or erosion, thus allowing the rainfall anopportunity to recharge the local aquifer, rather than being swept away throughdrainpipes and detention basins.

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Sparta Stanhope Road at Ascot Manor Detention Basin Area

ORDINANCE OF THE TOWNSHIP OF BYRAM

ENTITLED “TREE PROTECTION ORDINANCE”

as prepared by the

Byram Township Environmental Commission

Dawn Oleksy, ChairTina Bologna, Vice-Chair

Dr. Robert ChozickCharles Gartland

Donna Griff Michael Livesey

Margaret McGarrityScott OlsonCaryn Segal

and the

Joint Tree Protection Ordinance Subcommittee

Dr. Robert Chozick, Environmental Commission & Planning BoardLou Esposito, Township Council & Open Space Committee

Ken Kaufhold, Planning BoardAndy Kimm, Open Space Committee

Dawn Oleksy, Environmental CommissionCaryn Segal, Environmental Commission & Planning Board

February 26, 2004

ORDINANCE OF THE TOWNSHIP OF BYRAM ENTITLED “TREE PROTECTION ORDINANCE”

SECTION 1. Purpose

a. The Township Council, Planning Board and Environmental Commission have foundthat the indiscriminate, uncontrolled and excessive destruction, removal andcutting of trees upon land within the Township causes: increased drainage controlcosts; increased soil erosion and sedimentation; degradation of water resources;decreased groundwater recharge; and increased air pollution and dust, all tendingto impact upon the character of the Township by decreasing property values, andadversely affecting the public health, safety and general welfare.

Through this Ordinance, the Township intends to: regulate and controlindiscriminate and excessive removal and cutting of trees within the Township;have the maximum possible number of quality trees preserved in the course ofdevelopment of a site or lot; protect larger specimen trees; and encourageinnovative design and grading to promote the preservation of existing trees.

b. The Township Council, Planning Board and Environmental Commission recognize astrong relationship between the integrity of Township and regional water resourcesand development on constrained land (such as steep slopes, wetlands, reduceddepth to ground water ), tree removal, soil disturbance, storm water management,and the general use of land resources. Appropriate management of resources inthe Township is an important health, safety and general welfare issue.

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SECTION 2. Definitions

Terms are defined as follows for the purposes of this Chapter:

a. Clear Cutting - the removal of all standing trees on a lot or portion of a lot.

b. Diameter at Point of Measurement (DPM) - the diameter of a tree measured fourand one half (4.5) feet (forestry method) above ground level, on the downhill side ofexisting trees. Trees utilized for the replacement of existing trees, or proposed in alandscape plan, shall be measured twelve (12) inches above ground level for treesover four inches in caliper; the measurement shall be six (6) inches above nurserygrade for trees up to four (4) inch caliper (nursery method).

c. Drip Line or Tree Canopy - a limiting line established by a series of perpendiculardrop points marking the maximum radius of the crown of an existing tree, but notto be less than six (6) feet from the trunk.

d. Replacement Tree - a nursery-grown certified tree, properly balled and burlapped,marked with a durable label indicating genus, species and variety and satisfyingthe standards established for nursery stock and installation as set forth byAmerican Association of Nurserymen.

e. Selective Cutting - the removal of certain, but not all, trees in an area, on anindividual basis – dead, diseased, damaged, mature or marketable, or to improvethe quality of a tree stand.

f. Silviculture - the management of wooded areas on any tract or lot of land toinsure its continued survival and welfare, whether for commercial or non-commercial purposes, pursuant to a plan approved by the New Jersey Departmentof Environmental Protection (“NJDEP”), Division of Forestry.

g. Thinning - the removal of undesirable, competitive, diseased or damaged trees soas to cultivate and improve the remaining trees on the site.

h. Tree - any deciduous or coniferous species, which reaches a mature height ofeighteen (18) feet or more and has a typical DPM of six (6) inch caliper or greater.

i. Tree Replacement Plan - a specific plan for replacement of trees removed inaccordance with the provisions of this Chapter.

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SECTION 3. Cutting or Removal Restrictions

a. Existing trees tree with a DPM of six (6) inch caliper or greater shall not bedestroyed, cut, or removed, or caused to be destroyed, cut, or removed except incompliance with this Chapter.

b. Site plan or major subdivision applications that propose the destruction or removalof any tree shall not be approved until a Tree Removal Plan , and if necessary inaccordance with this Chapter, a Tree Replacement Plan (See Section 8) issubmitted to and approved by the Planning Board.

c. Trees may not be removed on areas of a lot which are afforded protection byconservation easement, wetlands restriction or wetland buffer, or the Township’ssteep slopes ordinance unless those trees meet the requirements of Section 4d.

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SECTION 4. Exemptions

The following exemptions apply:

a. Any individual residential lot where tree removal would be limited to an area lessthan 5,000 square feet for the purposes of constructing additions to the dwelling,accessory structures and/or expanded yard area, so long as a minimum of 30% ofthe lot area is maintained with a tree canopy per Section 5b. Separate tree removalevents on a single residential lot over a 3-year period that exceed 5,000 squarefeet area in total are not exempted from the requirements of this Chapter.

b. Trees to be removed in an area greater than five (5) acres that will be actively andprimarily devoted to agricultural use. A Tree Removal Plan must be submitted tothe Site Plan Committee of the Planning Board for prior review and approval. In theevent the expanded farmland (versus woodland) is not actively farmed for a periodof two (2) consecutive years, the tree replacement provisions of this Chapter willapply.

c. Parcels of land with an approved forest management plan that qualify for valuation,assessment and taxation under the “Farmland Assessment Act of 1964”, asamended (N.J.S.A. 54:4-23.1 et seq.).

d. Dead, dying, diseased, or damaged trees, or trees whose angle or growth makesthem an immediate hazard to structures or human life. (See Section 7 for disposalof dead or diseased trees.)

e. Commercial nurseries or fruit orchards.

f. Christmas tree farms.

g. Any tree that is a part of a cemetery.

h. Trees directed for removal by Township, County, State or Federal authority pursuantto law.

i. Removal or thinning of trees within sight easements or within the right of way byutility companies for maintenance of utility wires or pipelines.

j. Parcels of land with preliminary site plan or major subdivision approval. Removal oftrees prior to Planning Board preliminary approval is prohibited. The Site PlanCommittee of the Planning Board must grant approval prior to removal of trees forthe purpose of site investigation, such as percolation testing for septic systemsuitability or groundwater well test drilling.

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SECTION 5. Review and Design Standards for Construction Projects

a. Trees shall be permitted to be removed as necessary to allow the construction ofbuildings, structures, decks, pools, driveways, septic fields, lawn areas forrecreational use for the residents of the dwelling and any other authorizedimprovements. Existing vegetation shall be preserved to the greatest extentfeasible.

b. Existing lots with tree cover shall maintain a minimum of 30% of the lot area with atree canopy. This standard may be waived by the Planning Board or Zoning Officerupon good cause shown.

c. Tree protection measures shall be in place, including a field delineated area ofdisturbance, and/or a silt fence or construction fence in place at the drip line oftrees to be protected prior to tree removal or other site work.

d. Healthy trees outside of the building setback requirements shall be retained tomaintain resource protection and buffering to neighboring properties, unless thetrees pose a hazard to persons or property, or where the approved constructiongrading or disturbance would cause damage to a tree, creating an unsafecondition.

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SECTION 6. Requirements for Protection of Trees

a. Wherever practical, no material or temporary soil deposits shall be placed withinthe drip line of a tree to be preserved. A minimum of six (6) feet must bemaintained.

b. Except while engaged in tree removal, no heavy construction equipment shall beoperated within six (6) feet of any tree to be preserved.

c. Temporary tree protection as detailed in Section 5c is required prior tocommencement of tree removal or other site work.

SECTION 7. Disposal of Removed Trees

a. Disposal of leaves, branches and trunks of healthy or dead trees shall be at thediscretion of the property owner.

b. Disposal of leaves, branches and trunks of trees afflicted with diseases orinfestations declared to be a threat to any remaining trees by the NJDEP Divisionof Forestry shall follow the prescribed procedures as set out by the Division.

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SECTION 8. Tree Replacement Requirements

a. Where clearing and/or construction on a or part of a lot pursuant to an approvedtree removal plan, or where clearing and/or construction has resulted in accidentalremoval or severe damage which will result in the death of any tree intended to bepreserved, the owner/developer shall replace the tree(s) on a basis per individualtree removed or damaged in accordance with the following table:

Caliper of Existing Tree Removed /# of Replacement Trees

Between 6 and 17 inches one (1) tree

Between 18 and 23 inches three (3) trees

Between 24 and 29 inches five (5) trees

Between 30 and 35 inches seven (7) trees

36 inches or greater ten (10) trees

b. Replacement tree(s) must be 2.5” caliper or greater and shall be located on-site.

c. The type of replacement tree(s) shall be the same as the species removed, or asotherwise approved by the Planning Board in consultation with the EnvironmentalCommission.

d. Execution of a Tree Replacement Plan must be completed within two years of treeremoval for any site plan or minor or major subdivision, and within ninety (90) daysof tree removal on any residential lot. An extension may be granted upon requestuntil the next appropriate planting season if necessary.

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SECTION 9. Site Plans and Major Subdivisions.

a. Where tree removal is a part of an application for site plan or major subdivisionapproval, the Municipal Land Use Law governs.

b. Approval will be given to remove only those trees necessary to construct theproject.

c. Refer to the Site Plan Checklist for the required information.

d. No approval shall be granted, if the Board finds that the proposed tree removal iscontrary to the best interests of the public health, safety or general welfare and/orthat the tree replacement proposal is appropriate

e. The duration of the tree removal/tree replacement approval for a site plan,subdivision or variance application is based on the Municipal Land Use Law.

f. The permittee must notify the Planning Board Secretary in writing five (5) days priorto start of work.

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SECTION 10. Existing Individual Lots

a. A tree removal application and, where needed, tree replacement plan must besubmitted with any application for a Building Permit. Where application is made inconnection with a single-family lot (not part of a subdivision) the Zoning Officershall have ten (10) days to review and act.

b. If the Zoning Officer fails to act within the 10 day period, or denies issuance of apermit, application may be made to the Site Plan Committee of the Planning Board,which shall have thirty (30) days to act. The time period may be extended withconsent of the applicant. If the Subcommittee denies the permit, the applicant mayrequest a hearing before the full Planning Board based on the information presented.

c. Removal of trees from an area greater than 5,000 square feet requires priorapplication to the Site Plan Subcommittee of the Planning Board to request awaiver from the requirement for a tree removal and/or tree replacement site plan. If the Subcommittee denies the requested waiver, the applicant may request ahearing before the full Planning Board based on the information presented.

d. Existing tree cover shall be maintained so that a minimum of 30% of the lot areahas a tree canopy. The Site Plan Subcommittee and/or Planning Board may waivethis standard for good cause shown.

e. A permit for a single-family lot with no variances shall expire one (1) year from thedate of issuance.

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SECTION 11. Application Form and Fees

a. The application form shall be available from the Planning Board Secretary and shallinclude the following information.

1. Name, address and telephone number of owner of the premises.

2. Block and Lot, and address of property where the tree removal is located.

3. Name, address and telephone number of person who will perform the work.

4. A list of trees to be removed with a DPM equal or greater than six (6) inches,identified by size and species, including total number of each species to beremoved.

5. Purpose of tree removal (construction, driveway, recreation area, patio, parkingarea or other similar activity).

6. A property survey or other drawing indicating the area of the tree removalactivity and existing tree line to remain.

7. A plan for tree replacement where necessary.

b. Fees to be paid when the application is filed:

1. Existing Residential Lot (per Section 9) - application fee $(TBD) and escrow fee $(TBD).

2. Major Subdivision and Site Plan – application fee $(TBD) and escrow fee $(TBD).

SECTION 12. Violations and Penalties

a. Upon conviction, any person who violates this Chapter, shall be subject to a fine ofup to $1,250.00 per day for any such violation, or shall be imprisoned for a periodnot to exceed ninety (90) days, or both.

b. Each and every day shall be considered a separate and distinct violation

c. In addition, the Township shall be entitled to apply to the Superior Court for aninjunction to prohibit the commencement and/or continuation of such activitiesundertaken in violation of this Section.

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BACKGROUND MATERIALS

Township of Byram – Tree Protection Ordinance – February 26, 2004

THE ‘PROPERTY RIGHTS’ HYPOCRISY

Smart Growth’s Opponents Love Taxpayers Investments, Decry Citizen Involvement

By Keith Schneider, Elm Street Writers Group, 9/15/2003 (From: http://mlui.org/)

Not long ago, the conservative state representative for the area where I live in northern Michigan came bythe office. He wanted us to know that he opposed the state Natural River law, a successful Smart Growthstatute that has enabled people to build their dream homes even as it’s safeguarded the wild character of 16beautiful rivers in Michigan, including one in our county.

A campaign supporter, he explained, owns a canoe livery along a protected Natural River and loathes theidea that the public could make suggestions about how he manages his land or his business.

I wasn’t surprised. “Property rights” is the favored two-word battle cry for those here and all over thecountry who want to kill promising Smart Growth ideas to protect natural resources, rein in sprawl, andimprove the economy.

But I was startled by what he said next. The lawmaker asked if I’d heard about the new legislation he wasintroducing. What’s that, I said. Well, he’s proposed to exempt his friend and other canoe livery owners fromlegal liability if one of their customers is injured or killed in a canoeing accident.

WAIT A DARN MINUTE

Now hold the wheels. On the one hand you support blocking the public having some oversight on how abusiness affects a public resource - a river. Yet you want to require the public to lower a private business’sinsurance costs to improve its profitability in using that river? How, I asked, can you have it both ways?

And right there it struck me. “Property rights” is a hypocritical fraud.

I hadn’t always thought so. For years I’ve tried to understand developers and landowners who insist thatpublic interference in how they manage private land is a violation of the Constitutional right to privateproperty. Maybe they have a point. After all, who wants to be told what they can and can’t do?

But that afternoon it finally dawned on me that property rights isn’t about advancing a legal or moralprinciple. It’s about defending the ability to prosper at public expense without bearing any correspondingpublic responsibility.

It just so happens that the undeveloped farmland, forest, and open space beyond settled areas is the veryplace where the cry of property rights is heard loudest in Michigan and every other state. Most of the vocaladvocates are business executives, developers, and property owners waiting to make a killing on land sales andconstruction projects that wouldn’t even be possible without the nearby roads, sewers, and schools paid forwith the public’s tax dollars. But having willingly accepted the taxpayer investments, even fought for them,property rights adherents then turn around and tell the community to get lost.

NO LEGAL JUSTIFICATION

Property rights advocacy is rooted in the Takings Clause of the Fifth Amendment to the Constitution,which states that private property shall not “be taken for public use, without just compensation.” Thelanguage of the Takings Clause is perfectly straightforward. The only instance in which government mustcompensate a property owner is when private land is physically seized, or “taken,” for public purposes such asbuilding new roads.

Since the 1980s, though, right wing legal scholars have advanced a view of property rights and takings thatrequires government to compensate landowners if a regulation limits the use and therefore theoreticallydiminishes the value of private property. The United States Supreme Court has consistently rejected thisinterpretation. In case after case dating to the 1920s, the court has held that government actions, such aszoning or environmental regulations, may restrict some uses of land but it is an effect shared equally and thusnot a property rights violation or a taking requiring compensation.

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TARGET: SMART GROWTH

Although the law is clear, and the hypocrisy of the movement is apparent, that hasn’t stopped propertyrights advocates from trying to slow progress on Smart Growth in dozens of states. In Michigan, a bipartisancouncil of experts appointed by Democratic Governor Jennifer M. Granholm reached agreement in Auguston more than 100 steps the state should take to strengthen cities, curb sprawl in the suburbs, and improvethe state’s economic competitiveness. Those worthwhile goals, though, are seen as a threat by home builderswho are using “property rights” as a central theme to derail the council’s momentum in the Republican-ledLegislature.

Wisconsin’s sensible 1999 land use law, which requires cities and towns to improve their planning, is underattack from property rights groups who want to abolish the statute. The law’s opponents have published suchmisleading statements about its effects on landowners and the economy that the Wisconsin RealtorsAssociation last August published a paper to help citizens to “distinguish fact from the fiction.”

Property rights leaders also are organizing local resistance to Smart Growth in South Carolina,Massachusetts, Oregon, Washington State, Maryland, Pennsylvania, Idaho, and New Mexico.

The Smart Growth movement shouldn’t be deterred because it has history and common sense on its side.The nation rejected the property rights arguments of southern plantation owners in emancipating slavesduring the Civil War. At the turn of the century, industrialists argued that property rights gave them theauthority to block new government rules forbidding children to work long hours in their stifling factories.Southern segregationists in the 1960s cited property rights as the reason they refused to serve blacks at lunchcounters.

Property rights arguments, in other words, have often represented the very worst impulses in our society.

The idea of reining in runaway patterns of development, which has taken hold in states from one coast tothe other, reflects a much more encouraging value: A commitment by reasonable people to help theircommunities flourish.

* * *

Keith Schneider, a journalist and editor, is deputy director of the Michigan Land Use Institute. Reach him atkeith@mlui.org.

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WHY WERE THE TREES CUT DOWN?Among the Obstacles to Preservation: Rules and Ways of Doing Business

By Sandra Fleishman, Washington Post Staff Writer, June 28, 2003

Laurel Builder Michael T. Rose Helped Write the Book on Saving Trees.

For 30 years, he and his development company have been winning awards for combining construction andconservation. For instance, at Solomons Landing, a Calvert County waterfront community whose final phaseis under construction, Rose got permission from local regulators to put condo buildings on pilings instead ofon slab foundations to reduce grading and clearing. And he clustered the buildings to free up more land fortrees. The site had been logged two years before he bought it, so he even brought in hundreds of new trees.

“Conserving trees is not an easy task, but in our experience it’s worth doing,” Rose wrote a few years ago inthe preface to a book aimed at builders.

Rose is not unique among home builders; others also attempt to preserve trees. But throughout theWashington area, where construction of not only new communities but also in-fill projects in existingneighborhoods continues at a swift pace, residents regularly mourn the loss of familiar deep woods or just theclump of pines that had buffered them from neighbors.

Trees are pretty. They produce shade. They shelter wildlife . So why do so many builders cut them down?

It is easy to jump to the conclusion that they do so only because it is faster and cheaper to build that way.Those are considerations. For a tree- conscious builder, “it’s very hard to compete against a guy who isn’tgoing to treat the land the same way,” said Gary Moll, vice president of American Forests, a Washington-based nonprofit that is one of the nation’s key tree preservation groups. Being innovative in planning anddesigning to save trees takes time and money, he said.

But builders say those are not the only reasons. Laws and regulations meant to achieve other goals can getin the way of saving trees. The structure of the construction industry, where the company that prepares theland and the company that builds the house are often different, can also be an obstacle, they say.

For almost as long as humans have built houses, they have cut down trees to do so - you cannot build a logcabin without logs. But rapid development has brought rapid loss of trees.

Based on comparison of satellite photos over the years, American Forests estimates that the average treecover in the Washington- Baltimore corridor declined to 37 percent of the land in 1997 from 51 percent in1973. During those years, the region lost 114,222 acres of heavily forested land - acreage with more than50 percent tree cover - a decrease of 20 percent.

Conservationists say the rise of production home building in the 1950s quickened the decline in thenation’s trees. Builders were focused on mass- producing housing at prices many people could afford. Thatencouraged simple layouts and large tract developments.

While production building did get houses up quickly and cheaply, building in large tracts promoted thewholesale clearing and leveling of sites. That led to storm water drainage problems, erosion and flooding,according to conservationists.

In the past decade or so, builders and localities have been pushed to change their approach, Moll said. Treeordinances have been adopted around the country. Some only protect public or “street” trees, but others aremeant to preserve trees during construction, or to mandate replacements if trees are removed. Maryland,though, remains alone in having a statewide law requiring towns and counties to establish systems to protecttrees during construction.

“One of the great misconceptions is that builders uniformly want” to eliminate trees, Rose said. Often, hesaid, builders are pushed into such decisions by long-standing zoning rules, planning ordinances and utilitydemands.

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“Builders do not subscribe to the scorched-earth approach,” he said. Instead, “they like to follow the rulesand get things accomplished as fast as possible” and as cheaply as possible, he said.

But following the rules often leads to tree removal because zoning or subdivision regulations do not taketree preservation into account, he said. Road widths, for example, have been set to allow a certain number ofcars and a fire truck to pass, so it is not always easy to get permission to make roads narrower to save treesalong the edges. Also, utilities hamper efforts because their goal is to keep their rights of way clear and theyresist sharing underground trenches, Rose said.

Moll agrees that government and utilities play a role in urban America’s move “from green to gray” over thepast 50 years. But builders are not blameless, he said. “They can do more, there’s no question.”

In Maryland, for example, he laments that builders can choose to pay for trees to be planted off site ratherthan having to keep or plant more on site. “Unfortunately, what has happened to a great extent in Marylandis that builders can pay fines [for not complying with local regulations mandating a certain amount of treecover] or can in some cases comply by putting trees in reserve,” Moll said. The state’s law, he said, is a goodstart, but not enough.

Steve Seawright, head of Seawright Homes of Bethesda, another builder whose tree-conscious projects havewon awards, said that the structure of the residential construction industry is also to blame. Usually, adeveloper and a builder are two different companies. The developer assembles land, deals with governmentrequirements, prepares roads and utility infrastructure, and divides lots. The builder constructs houses.Seawright does it all in his communities, which he said increases his control.

“The typical pattern that’s prevailed over the last 20 years is that there are people who develop and peoplewho build,” he said. “And the guy who’s developing the land does what he thinks will make the land mostinviting to builders without any foreknowledge of what’s going to be built on it. So what we’ve ended upwith are generic building sites, where the land has been mass- graded regardless of what the land looked like.[These developers think] you just make it look like a pancake...because you don’t know who it is that isgoing to build and what it is that they’re going to build.”

Steve Clark, an urban forester who works as a consultant to builders, said he believes builders, cities andcitizens are working together and “that people now are looking for a common-sense approach on how todevelop America.” Each party has to compromise, he said.

“A lot of builders are still working under the [belief ]...that the trees don’t live” if they try to keep them onsite, “so they say, ‘We don’t need them.’ They think they can’t build and save the trees because that’s the waythey’ve always thought and because that’s what their grandfather told them.”

But, Clark says, building neighborhoods with trees “is economically feasible or I wouldn’t be sitting here.”

American Forests has been working with the National Association of Home Builders for about 17 years tobuild a dialogue over trees and to show how it is in the interest of builders, cities and citizens to protectthem. Not only do trees reduce pollution, keep buildings cooler and eliminate some of the need forexpensive storm water management systems, conservation groups said, but they add warmth and value to aproperty lot. The National Arbor Day Foundation is another partner in the effort, which includes awardsand designations that builders and cities can use in marketing or publicizing their efforts.

According to “Building Greener Neighborhoods,” a book co-written five years ago by tree preservationistsand builders, including the preface by Rose, trees can add $2,000 to $5,000 to the market value of aproperty. Others said mature trees can boost the market value of a home by an average of 6 or 7 percent.

Seawright agrees. “Most people prefer to have trees on their property rather than to have little sprigsplanted and to have to watch them grow for 20 years,” he said.

Seawright said he has always factored trees - and the topography, or lay of the land - into his designsbecause he believes buyers want to preserve the natural settings. “We believe it is the right thing to do,” he

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said, “and we think that the conventional wisdom - that it’s less expensive to wipe them out than to livewith them - is wrong.... The financial results are the same, if not better.”

Howard County Sierra Club activist Dennis Luck, for one, remains wary. He said he is so busy trackingdevelopment in and around Columbia that he cannot calculate whether residents are more upset about oneparticular project than another. But it looks to him as though trees are coming down all over.

“We always get upset when the trees are taken down, and we’ve tried to plant trees all over the county, butthe drought years just decimated our work,” Luck said.

When asked about community concerns over several developments recently going up simultaneously in andaround downtown Columbia, Luck said, “People are concerned about tree preservation all over the county.”He thinks that what concerns residents most are cases of in- fill building, or development in wooded areasand empty lots between existing developments.

“If the rules permit it, the builders are going to do it.... If the law is on the books that allows clearing, thenpeople have to change the law,” Luck said.

In some cases, said builders such as Rose and Robert Kaufman, a former associate of Rose’s who now worksfor Augustine Land and Development, residents think the worst of builders because they cannot see thattrees are being saved. Or they do not realize the value of removing trees from high-density urban sites to savetrees in areas elsewhere that are zoned for lower density. All they see are the earthmovers taking down thetrees.

“People get emotional about trees,” said Marian Honeczy, the coordinator of Maryland’s tree conservationprogram. But they may not realize that trees have been saved, she said.

“It’s not something that you can drive down the street and see,” she said. For example, she said, trees mightbe retained far from roadways around critical areas such as streams. In other cases, she said, a county mightwant to protect larger blocks of forest off site, and prefer to give up trees in one location to get a bigger standof trees elsewhere.

Maryland’s tree protection law applies to any development on parcels of 40,000 square feet or more, orabout an acre or more, and requires that any activity on that land be reviewed by the local government’sforest conservation program before construction.

The law also requires a certain amount of tree cover, depending on the zoning. For a medium-densityresidential development, 25 percent of the land must have tree cover. For a high-density residential project,20 percent tree cover is required.

All of Maryland’s counties and 80 of 91 towns have passed ordinances with tree conservation programssince the Maryland law was approved in 1991, Honeczy said.

The penalty depends on the county, but generally builders who do not comply must pay 30 cents a squarefoot for the area that was disturbed, and/or $1,000 a day, Honeczy said. Counties can also issue stop-workorders, which “are often more effective, because it costs more money [than a fine] if a builder has to sendeveryone home,” she said.

Virginia has no state law on tree conservation, but individual jurisdictions do. Fairfax County celebratedthe 30th anniversary of its urban forestry program last month, said Michael Knapp, the program’s director.

The District’s urban forest preservation act was passed last year and took effect in April, chief foresterAinsley Caldwell said, but regulations are still being written. The District law requires permits to take downany tree on private land that is greater than 18 inches in diameter or 55 inches in circumference. A residentcan opt to plant replacement trees or to pay into the District’s public tree fund the equivalent of $35 percircumference inch of each tree that is not replanted.

(c) 2003 The Washington Post Company

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