A discussion that began in August about the alleged illegal removal of a tree on Stow Road, in violation of the town’s Scenic Bylaw, continued at the Oct. 18 meeting of the Planning Board and ended with an invitation from the board to homeowners Paul and Hillary Kavanagh to resolve the matter through mediation.
In August the Planning Board alleged that the Kavanaghs had removed the tree, even though they had been expressly forbidden to do so when they first requested permission in 2007, when their home was being built. The board voted to fine the couple $100 for removal of the tree, and debated about requiring them to replace it. The Kavanaghs said the tree had been removed by an Asplundh work crew acting on behalf of National Grid.
Discussion on the matter was continued twice, so that all parties could be present. Although not all Planning Board members were able to attend the Sept. 24 meeting, the Kavanaghs were in attendance and challenged the board’s authority to impose fines. The board decided to get an opinion on the issue from Town Counsel Mark Lanza.
At Monday’s meeting, attended by Paul Kavanagh, his representative, and Planning Board members, Chairwoman Kara Minar reviewed the violation and associated fines previously discussed. She opened by saying that bylaws were put into place by the townspeople and that the Planning Board members are designated by the residents to ensure their interests are preserved. Then she read the opinion provided by Lanza on the board’s authority to impose fines relative to violations of the Scenic Bylaw.
Lanza’s statement said that the bylaw “… shall be administered and enforced by the Planning Board, the Building Inspector, the Tree Warden, the director of the Department of Public Works or others designated by the Town Administrator. Enforcing officials may issue a citation for the violation of this bylaw and shall take appropriate action in the name of the town of Harvard to prevent, correct, restrain, or abate such violations. Violators shall be subject to a fine of $100 per violation for the first offense, $200 per violation for the second offense and $300 per violation for the third and all subsequent offenses,” The opinion goes on to state that fines can be recovered in a criminal prosecution and goes on to say, “In addition to the fines, the town can also file and pursue a civil suit seeking a court order to prevent or restrain tree removals and/or replace removed trees. It can also seek damages in a civil case for the dollar value of the tree removed. Of course, the town can settle a dispute over a Scenic Road tree removal on any terms that it wishes.”
In support of the Planning Board’s assertion that the Kavanaghs were responsible for the unauthorized removal of the tree, Minar presented affidavits obtained from Asplundh tree company employees Keith Harris, tree foreman, and Randy Morgan, crew foreman, stating that they had no role in removing the cedar tree from the Kavanaghs’ driveway because it did not pose any threat to the power lines and was at least 40 feet away from the wires. Minar also read from National Grid’s Tree Removal Summary sheet, which provides detailed property and species descriptions, that indicated there was to be only an Ash tree removed from that address.
After presenting her documentation, Minar asked Kavanagh why he thought Asplundh would cut the tree down without getting paid or being asked to do so. Kavanagh said he didn’t know. Minar said that the board was not trying to be overly punitive, but was primarily interested in correcting the problem of restoring the tree.
Vice Chairman Craig Bardenheuer agreed and made it clear that the issue was solely about preserving the character and integrity of the town and its scenic byways. “I see it straightforward. The tree was protected and now it is not there.”
Minar extended an invitation to the Kavanaghs and their representative to meet with two Planning Board members and town counsel to reach a mutually agreeable decision about replacing the tree. Kavanagh responded that he would have to discuss it with his wife.
