Public claims on how private property owners exercise their legal right to “enjoy” their property, including building on it, should carefully balance the public stake in restricting what private property owners can do with their land against private property owners’ legal rights.
The strongest case for such restrictions is when a private property owner’s exercise of legal rights adversely affects another nearby or abutting property owner. Building in a floodplain causes water runoff and flooding of nearby properties. Building an excessively tall structure takes away the sun of others nearby. Building to excessive density crowds an area with people and cars.
A strong, but less strong case for such restrictions is when a private property owner’s exercise of legal rights adversely affects the broader community, not necessarily those nearby. Floodplain construction expands the floodplain, often far beyond immediate abutters. We prohibit businesses in residential-only zones, likewise housing in business-only zones, because the community’s stake in coherent development trumps private property rights.
Trees are a mixed bag. They can be an amenity to one person and an annoyance to another. Yes, they clearly take in CO2 and output O2. That is a collective benefit because it’s atmospheric; no one controls where those gases go, no one party can should assert a claim to them. However, the shade that trees produce may be an amenity to the person who appreciates shade and cooling, yet be an annoyance to the person who wants sunlight for a garden, solar panels or winter warmth. The leaves a tree produces may be appreciated by one person for the compost they can help provide, yet be annoyance to the adjacent property owner who resents having to rake them up. We already give property owner A the legal right to trim the branches of property owner B’s tree when that tree’s branches extend above property owner A’s property. However, property owner A currently has no legal right to object to property owner B taking down his/her own private tree, even if property owner A thereby suffers the loss of much-appreciated shade.
It seems we limit a private property’s autonomy regarding property only when exercising it creates a hazard to another. We limit that autonomy when a tree’s creates an annoyance or hazard to others, or it is rotted and may fall on the neighbor’s house. We give the abutter the right to trim another’s tree when it creates an annoyance, but not the right to compel its owner to remove it, nor the right to compel the owner to plant a replacement for one removed.
The scope of the proposed new regulations is intended to be limited, to apply to the developer redeveloping an entire lot, not to a current owner adding or removing a single tree in the backyard.
I think that if a home is razed, it makes sense to allow a developer to start the site again, tabula rasa, even if that means an adjacent owner loses valuable shade (some might appreciate increased sun). What trees were once there may have grown there by chance, or may have been planted, but trees have a lifecycle and can be taken down and grown up. Clearing the site of trees certainly makes construction easier, and either the developer or a future owner can plant new trees later. Yes, that may take decades, but the tree will also be there for decades.
Looking on Google at the two specific addresses cited in the YourArlington.com story shows a neighborhood of fairly large lots with a well-developed mature tree canopy over much of it. On one of the lots, a single, small house on a large lot was replaced by two large houses which clearly approached the maximum density allowed, with a corresponding gross reduction in the tree cover. However much you or I may not like that, it is not right for nearby owners to assert claims on and try to preserve the trees on their neighbors’ lot. After all, there are many places in Arlington that are much more densely populated and with far fewer trees, e.g. the many closely spaced 2-families with few or no trees on their property.
I have no doubt that 200 years ago, when Arlington’s forests were cut down and land made farmland, some objected, and some approved. Ditto when over the last 100 years, that farmland was converted to housing. And ditto now, when with most of Arlington is not only built out, but built out to the max.
If people want more open space, there are legitimate, long-accepted methods of creating that. Our zoning code has Floor-Area ratios, height limits, setback requirements, and usage restrictions. We have Open Space zones. Building codes further regulate how structures are constructed.
However, I simply can’t see Arlington either requiring or prohibiting either the planting or preservation of trees on private lots when the purpose in doing so is to create or preserve an amenity for others nearby. (Requiring the removal of hazardous trees is legitimate and another case entirely.)
These comments were published Wednesday, Aug. 26, 2015.
