Council Votes Not to Remove Trees

Dec 2 2019 /

by Terry Rogers

 

On Monday, November 26, Milford City Council voted in support of a letter drafted by Public Works Director Mark Whitfield not to remove damaged trees located in alleys or on other property not belonging to the City. A petition signed by residents living on Delaware Avenue requesting that trees be removed from a coal alley behind their homes led to the official decision by Council.

“All of this came to light when I drafted a letter response to the owner of the property requesting the City to remove the tree,” Whitfield explained. “In the letter, I was denying the request since the tree was located in a private alley. The property owner had a memo that was sent back in 2015 from the Operations Manager in the Electric Department reporting they had removed a tree in that alley and, in parenthesis, stated the alley was City owned. Because it was going to a resident in Ward 2, I copied both Mr. [Todd] Culotta and Ms. [Lisa] Peel, councilpeople for the ward. Mr. Culotta asked that I not send the letter so it could be brought before Council.”

During discussions regarding the tree on Delaware Avenue, Councilwoman Katrina Wilson reminded Council that a similar situation existed on North Street with a property owner there being told that the tree was on private property and could not be removed. Whitfield explained that over the past four years, he had denied dozens of tree removal situations where the tree was on private property. In one instance, the City denied a request from Milford School District for the same reasons the residents of Delaware Avenue were being denied.

“Coal Alley is a private alley,” Whitfield said. “Because the alley was never improved, it was never accepted by the Municipality. Because the offer of the right-of-way was never acted upon for more than 20 years, the City no longer has rights or jurisdiction on the alley. Common property law would be that half of the alley reverts back to the abutting property owners on each side. However, ownership would belong to tall that live within the subdivision. If all property owners who abut the alley decide that alley should be abandoned, they could claim their half as their own property and have deeds redone. However, if one person has used the alley in the past 20 years for access and wanted to continue to enjoy that access, the alley would remain “private” and open for that use. Each abutting property owner would be responsible for the maintenance of their half.”

In his letter to the homeowner who requested the removal of the tree, Whitfield explained that he had discussed the situation with City Solicitor David Rutt who concurred that the tree was on private property and was not the responsibility of the City.

“This is an old subdivision, and old subdivisions often had “coal” alleys for the delivery of coal or fuel to the rear of the houses as a convenience to the property owners and not as a public way,” Whitfield wrote. “The alley in question was never  improved nor is there a record of the City accepting the right-of-way. As for the trees removed in 2015 by City Electric Crews, I can only surmise that the supervisor at the time assumed the alley right-of-way belonged to the City and gave authorization for the trees to be removed. The fact remains, however, that the City does not have an interest in the alley nor has the alley been accepted by the City and the supervisor at the time erred in having the trees removed.”

Whitfield presented an explanation of how rights-of-way and streets work based on property law. Right-of-ways are dedicated to public use when they are recorded on planning documents but not taken over by the City of Milford until they are improved and meet specifications. As construction progresses in developments, utilities are added by the developer within a right-of-way but until improvements have been completed, the right-of-way responsibility does not fall to the City. In addition, the City right-of-way is often wider than the area needed for public improvement. The City only maintains the curb, pavement and utilities within that right-of-way while the property owner is responsible for maintaining grass and any vegetation between the property line and the curb. Whitfield also explained that there are improved alleyways within the City where the town is maintains the improved surface but does not cut the excess grass outside the improved surface.

“The City of Milford recognizes the existence of unordained/unopened/unimproved alleys and rights-of-way within the City,” City Manager Eric Norenberg said. “These alleys existed as “paper” rights-of-way as noted on subdivision plots and the alleys were referenced in property deeds. Because most, if not all of the alleys noted as such, are more than 20 years old, the City no longer has right to ownership or use of the rights-of-way. While not formally vacated, staff recommends an amendment to the City Code for the vacation and abandonment of rights-of-way in order to make the ownership and responsibility of maintenance clear. In such vacation or abandonment, half of the right-of-way could revert back to the abutting properties, if all abutters agree. The City does have the right for certain tree trimming and/or tree removal on private property as outlined by the City’s Tree Ordinance and Electric Tarrif. The Tree Ordinance does state that the maintenance of trees between the sidewalk and curb, within the public right-of-way, is the responsibility of the abutting property owner.

Council approved the staff decision not to remove trees on private property, including the one near Delaware Avenue with a vote of 5 to 0. Councilmen Todd Culotta and Owen Brooks were not able to participate in the discussion nor vote as members of their family had signed the petition. In addition, a moratorium was placed on any further tree removal and confirmed that all tree trimming and removals be done in accordance with City Code.

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