As the Town Board considers revisions to the proposed new tree law, it appears to be seeking a middle ground on the issue of mitigation, somewhere between requiring mitigation or making it optional. But the middle ground solution that’s being considered, i.e., including a presumption that mitigation will be required but, at the same time, allowing the Planning Board to waive the requirement, won’t work. It won’t work because the waiver will end up making mitigation optional—and once optional, it isn’t likely to happen. The Planning Board seldom requires mitigation for lost trees or woodlands.
Mitigation is an essential part of a meaningful tree law. If the Town Board is serious about protecting our environment and our quality of life, the new tree law needs to require mitigation without a waiver. Anything less should be unacceptable.
The supposed rationale for the mitigation waiver is that the requirement in the proposed law that was the subject of a public hearing is too onerous. But that rationale is based on a gross misreading of the proposed law.
Contrary to what some Board members “think” the proposed tree law says, the law does not require mitigation for every tree that is removed or every square foot of woodland that is disturbed. Nor does it mandate a one-to-one mitigation ratio. Development projects with limited unavoidable loss of trees and/or woodlands are likely to have very limited, if any, required mitigation. And most tree removal undertaken by homeowners will not require mitigation.
Mitigation means, to the extent possible, compensating for the functions that are lost when trees are removed and woodlands disturbed. And that’s exactly what the 100 percent flexible mitigation requirement in the proposed law does. It allows the Planning Board, working with the developer, to custom tailor a mitigation plan that includes a mix of mitigation measures that address those lost functions and which are appropriate for the site. No specific mitigation is mandated.
In 2010 when Yorktown’s first tree law was adopted, residents supported a strong tree law with a strong mitigation requirement. But in 2016, ignoring considerable public opposition, a prior Town Board repealed the 2010 law and replaced it with the weak law we have today that makes mitigation optional.
If residents want a strong tree law, then the 2019 law must include a strong mitigation requirement.