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FW: Chapter 260A (Tree Cutting, Topping and Removal on Distribution Lines Rights of Way)
Release Date: May 21, 2007

Con Ed has been cutting trees all over the region. Many residents are concerned because they feel that some healthy trees that are not in danger of falling on power lines have been taken down.

This is a draft law that  two members of the Conservation Advisory Council Mike Sigal and Dan Rosenblum worked on to address the tree related activities on public and private rights of way. I will ask the Town Board to discuss the proposed legislation at our work session on Tuesday afternoon. The work session starts at 3:30 PMon Tuesday. I will invite Con Ed and the PSC to the meeting.



        Here's a draft law, regulating tree cutting activities with respect to Distribution Lines, which Dan Rosenblum and I have prepared in response to an immediate community need.   As discussed in our May 17 email, unlike higher voltage transmission lines, we are not aware of any state preemption with respect to local Distribution Lines.  This law  does not address tree-related activities on transmission lines.  It only addresses tree-related activities on public and private rights of way upon which Distribution Lines are situated.

        Under the draft law: (i) nationally recognized tree pruning practices are required and (ii) where necessary, tree cutting is allowed.   The law specifically permits the utility to take such tree-related activities as in its judgment is needed in emergency situations.  Where desired by the public or private property owner who granted the utility right of way for the Distribution Line, replantings are required so as to protect important community-based interests in flood control, water purification, soil erosion, carbon dioxide removal from traffic and other sources, and reducing dependence on fossil fuels.

        Providing reliable electric service to the public and protecting the environment are both important.  We think his law achieves a reasonable balance of (i) utility activities to provide reliable electric energy and (ii) environmental protection for the community.   We hope this law would be passed right away in light of the imminent community need.

                Section 260A - 1.  Legislative Findings and Intent 

                        The Town of Greenburghwishes to promote the reliable delivery by public utilities of electric power to residents and businesses within the area of Unincorporated Greenburgh.   The Town also wishes to recognize and preserve the benefits of trees to the community, including without limitation, flood prevention, water purification, impeding soil erosion, removing carbon dioxide from the air from traffic and other sources of carbon dioxide, and providing protection from the elements and reducing the need to utilize fossil fuels for heating and air conditioning.

                Section 260A - 2.  Definitions; Terms

                        Distribution Line -  An electric line not exclusively regulated under Article VII of the Public Service Law.

                        Department -  Department of Community Development and Conservation.

                        Entity -  Any corporation, limited liability company, partnership, limited partnership or other entity recognized by the State of New York.

                        ROW -  An easement or other right of way, whether granted by a public corporation or a private property owner, on which a Distribution Line is situated.  

                        Tree -  [Janet Insardi - pls supply]

                        As used in this chapter, a grantor of a ROW shall include the present property owner if the ROW had been granted by a predecessor in interest.

                Section 260A - 3.  Standards 

                        A.   Entities maintaining ROWs in the Town shall follow the tree maintenance practices for utilities established by The National Arbor Day Foundation from time to time in effect, unless and to the extent in writing otherwise authorized by the Department's Forestry Officer under such terms and conditions as may be specified by her/him.   Nothing in this chapter prevents an Entity from reaching an agreement with a grantor of a ROW that allows the ROW grantor to perform tree maintenance her/himself, or to contract privately for it to be performed, as long as such tree maintenance conforms to the standards established by The National Arbor Day Foundation.

                        B.   Except for tree pruning and trimming maintenance practices permitted by Subsection A, no Entity shall cut, top or remove a Tree on a ROW unless such Tree poses a danger to a Distribution Line.   Unless the Entity has received in writing the consent of the grantor of the ROW at least five days before such action, the Entity shall file with the Department at least five days before any such action a certification by an arborist designated by the Department that (i) such Tree is diseased or dieing or (ii) with respect to a healthy Tree, such Tree is so entangled with a Distribution Line that pruning and maintenance practices cannot reasonably be expected to prevent such Tree from falling on or otherwise interfering with the Distribution Line.   Notwithstanding the preceding provisions of this Subsection, an Entity may cut, top or remove a Tree on a ROW if it has fallen on a Distribution Line or, in the judgment of the Entity, is in imminent danger of doing so.

                        C.   Except for tree pruning and trimming maintenance practices permitted by Subsection A, any Entity cutting, topping or removing a Tree on a ROW (including if done on an emergency basis pursuant to the last sentence of  Subsection B) shall, if requested by the public or private grantor of the ROW, replant a replacement tree for each such Tree cut, topped or removed.   All replacement trees shall be a native tree for this region as designated (i) by the County of Westchester Department of Planning or (ii) in the New York City Parks Department "Native Species Planting Guide for New York Cityand Vicinity or (iii) in Cullina, "Native Trees, Shrubs & Vines".   All other terms and conditions of replanting shall be as agreed in writing between the Entity and the grantor of the ROW; provided that, if such an agreement is not reached within 45 days after the action, such terms and conditions shall be as designated by the Department's Forestry Officer.

Section 260A - 4.  Administration; Enforcement; Penalties

                        [A.   Prior to commencing any cutting, topping, removal, pruning or trimming of Trees on a ROW, a Entity shall obtain a permit from the Department, except if such is done on an emergency basis pursuant to the last sentence of Section 3B of this chapter.   A permit shall be granted by the Department if the standards of Section 3A or 3B are met.  A copy of the permit shall be mailed to the grantor of the ROW, as reflected on the Town's tax records, at least 7 days prior to the commencement of work.  The Department shall set such fees as it deems appropriate for the issuance of permits.] 

                        B.   The Department may issue such regulations and forms as it deems appropriate for the administration of this chapter.   The Department may issue Stop Work Orders for violations of this chapter.

                        C.   If a provision of this chapter is violated, the Town or the grantor of the ROW may, in any court of competent jurisdiction, seek injunctive relief restraining any violation of this chapter and/or compel the restoration of the violation.  If a provision of this chapter is violated, the grantor of the ROW may also seek civil monetary damages in any court of competent jurisdiction.   [Any violation of this chapter shall also be punishable by a fine as determined by the Town Court, of not less than $   ____  per Tree.]                  

                Section 260A - 5.  Other Laws; Severability

                        A.   This chapter is subject to any provision of New York State Law expressly preempting local municipal regulation with respect to Distribution Lines.   Nothing in this chapter repeals or supersedes any other Town law or regulation or modifies any outstanding franchise agreement between the Town and any Entity.

                        B.   If any provision of this chapter shall be declared unenforceable in a final and non-appealable order of a court of competent jurisdiction, that shall not affect the validity of the remaining provisions of this chapter and the remaining provisions of this chapter shall remain in full force and effect.


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