The Story of BROW: Planting Street Trees Beyond the Right-of-Way—and What it Means for New Yorkers

By Al Wegener, Landscape Consultant

Is it legal for a municipality to plant street trees beyond the right-of-way (ROW)—that is, on private property?

Sugar maple in New Paltz shows effect of cutting by utility, age and decay, with no room within ROW for planting new tree. Photo by Al Wegener
A sugar maple in New Paltz affected by utility pruning, age, and decay, with no room within ROW for planting new tree. Al Wegener

It’s a question I’ve run into a lot when planning street trees with towns and villages.  That’s in part because with the widening of our roads over the years and the construction of sidewalks, there is often insufficient soil volume in the ROW to support street trees.  Furthermore, some highway superintendents want a ROW free of trees so they can do street maintenance operations more easily. Also, trees in the ROW may conflict with utility lines, a battle neither “wins.” So it’s really tempting to plant just a few feet beyond the ROW, on what might be an open and inviting lawn. But is it legal to do so?

Digging In. To find out, Karen Emmerich, a planner in ReLeaf Region 3, and I surveyed seven town and village officials in the Shawangunk Mountains Region. We asked what they thought about a municipality planting trees on private property. They said variations on “That’s probably something you don’t want to mess with,” or “It’s a dicey thing to do,” and several felt it might be against our State constitution. But nobody really knew for sure.

Pin Oak by Al Wegener
Pin oak by Al Wegener

I then spoke with Susan Zimet, supervisor of the town of New Paltz. Susan wants very much to re-establish the trees along Main Street and throughout the town. But many of the trees would have to go beyond the ROW. So she arranged for me to speak with town attorney Joe Moriello about it. That got the ball rolling.

Joe said he hadn’t really studied the matter, but he told me of a 1970 Attorney General Opinion that opined that for cities, and by extension towns and villages, the use of municipal resources to plant trees on private property is a violation of article VIII, section 1 of the New York State Constitution. Here it says that no local government shall give money or property to a private entity.

So, to plant trees beyond the ROW, do we somehow need to change the State constitution? How do we do that?

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The Board Takes Up BROW. I raised the question at the next board meeting of the NYS Urban Forestry Council. In my presentation, I listed 13 documented benefits of street trees that our communities would forfeit if we had no good places to plant replacement trees. I pointed out that these are benefits to the general public, not just for the private property owners. And I gave examples of the difficulties I was having with “my” towns and villages in locating good planting sites for replacement trees within the ROW.

Everybody seemed to be in agreement with the benefits to the general public I listed, but some questions were raised about planting beyond the ROW (which we started referring to as BROW, Beyond Right-of-Way). Those questions included:

Silver linden by Al Wegener
Silver linden by Al Wegener

How far beyond the ROW could you plant before you lose these benefits to the public? Who maintains the tree and does the watering and pruning? Who has liability for the tree? What if at some future date the property owner wants to cut the tree down for one reason or another?

The board had consensus about the necessity of gaining the permission of the property owner—not only permission, but cooperation.

Also during this board meeting, it was pointed out that, going by the 1970 Attorney General Opinion, some municipalities who are now planting outside the ROW may not have a sound legal basis for doing so.

Mary Kramarchyk, Program Manager for NYS DEC-Urban Forestry, reminded us that State Urban and Community Forestry grants, at this time, do not provide for planting beyond the ROW.

Council President Andy Hillman pointed out that planting beyond the ROW was legal in Massachusetts. If so there, why not here?

The board also wondered how it was permitted that the NYS-DOT can plant loads of trees beyond the ROW. And we noted that the US Forest Service has authorized the use of federal funds for the purpose of “replacing dead and dying urban trees … on private property in New York City.”

All well and good, but the Attorney General seemed to be saying that it is not legal for local governments to do so in NYS. Going by this, local municipalities could be sued for doing so; that is, for giving money or property to enrich a private entity. So what to do? NYAT logo

Enter the Association of Towns. Chris Anderson, Director of Research for the Association of Towns (AOT) of the State of New York came forward and volunteered to work on this and to utilize the resources of AOT. Great! Just what we needed.

Over the next few months, Chris and I discussed many of the considerations and issues involved in the BROW idea. He enlisted the help of Lori Mithen-DeMasi, who is AOT’s Council. Between Lori and Chris, they must have spent hours and even days researching this.

Lori agreed with Joe about the 1970 Attorney General’s Opinion but wrote that it “must be read together with subsequent attorney general opinions that redefine what actions constitute an unconstitutional gift of municipal resources.”

She added: “Since 1970, the attorney general has issued numerous opinions wherein they have opined an incidental benefit to a private individual or entity does not invalidate an expenditure of public funds if a public purpose is primarily served by that expenditure (Murphy v. Erie Co., 28 N.Y.2d 80, 88 (1971).”

Planetree Al W
London plane tree by Al Wegener

Lori said that “local municipalities have the authority to enact a local law to provide trees to property owners according to the Municipal Home Rule Law, §10(i)(a)(ii)(12) of the NY Const., Art IX, §2 under their police powers.”

The phrase “police powers” threw me a bit. So, naturally, I googled it and found  that “police power” has been defined generally as “the power to regulate persons and property for the purpose of securing the public health, safety, welfare, comfort, peace and prosperity of the municipality and its inhabitants (Village of Carthage v. Frederick, 122 N.Y. 268).”

In the AOT background piece, Lori gives several examples of where the attorney general has determined that it was appropriate under the Home Rule Law to use public resources to benefit the general public even though private parties would receive an incidental benefit.

So it seems to me we’re on good legal ground, per the Home Rule Law, by citing the public benefits of planting in the BROW and by siting the trees in a way that assures these benefits will be realized. And I thank Chris, Lori, and AOT for their dedication and thoroughness in clearing this up.

Norway spruce by Al Wegener
Norway spruces by Al Wegener

Next Steps. My own feelings are mainly that (a) the idea of planting in the BROW is going to be news to many people and (b) it will be very important to gain the full cooperation of property owners.

This leads me to suggest that a key first step would be to provide background and the AOT writeup to the attorney of each local municipality interested in planting in the BROW and to get agreement on the legal basis for doing this so that they can advise their official boards.

I did this in New Paltz. After reviewing the AOT writeup, town attorney Moriello is in agreement with Lori; so is Supervisor Zimet. We are now considering the specific concerns mentioned above. In my view, they will need to be studied and resolved by each local municipality in accord with local needs and circumstances.

Then, the process of enacting a local law for BROW will provide a good framework for communicating this information and the rationale for planting in the BROW to the public. Considering the importance of being able to plant trees in the BROW, we should engage the full lawmaking process with broad public participation. Any shortcuts, such as a simple resolution by the local board without public involvement, could lead too easily to misunderstanding.

Tree in lawn Al W
Al Wegener

For me, the cooperation of property owners is essential. The success of planting in the BROW, I feel, is largely in their hands. Not everyone loves trees and is willing to care for them. Also, we’ll need to address the concerns some businesses have about storefront visibility; giving public recognition to “tree keepers” may be helpful.

So these are my thoughts, and I am hopeful that others will provide their comments to this post on the TAKING ROOT blog to create a forum for ideas.

Al Wegener is a Landscape Consultant, working primarily with local municipalities. He is a Certified Arborist and Certified Municipal Specialist. Al is also the Executive Director of the regional partnership of 11 local municipalities which created the NYS-designated Shawangunk Mountains Scenic Byway. He can be reached at aweg@earthlink.net.

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