Lawsuit sheds light on tree-cutting controversy
FERRISBURGH — Documents filed in May by Ferrisburgh in Addison County Superior Court’s Civil Division in Middlebury shed light on the legal positions held by both the town and the Vorsteveld Farm LLP in the parties’ dispute over the farm’s clear-cutting of trees and other vegetation in 2017 and 2018 along Arnold Bay Road.
Facts apparently not disputed are that Vorsteveld Farm LLP based in Panton has 169.1 acres along Arnold Bay Road and hired a company to clear trees and a hedgerow along 3, 550 feet of the road’s east side. A contractor did most of the work in the spring of 2017, and the farm, owned by brothers Hans, Rudolf and Gerard Vorsteveld, had more trees removed in 2018.
The town states the trees were “within the six-rod public right-of-way” along the road, per court documents. According to Ferrisburgh tree warden Clifton Mix, 1,870 trees with a diameter of less than six inches were removed, and 306 trees with a diameter of more than six inches were removed. Theoretically, Mix wrote, the farm could be fined more than $1 million.
Those trees, along with similar trees along the west side, created a canopy over the road. Many neighbors have complained to the selectboard at meetings and in phone calls and emails about the loss of the canopy, and about drainage problems that have resulted from the removal of vegetation and due to drainage work the farm has also done.
The suit filed on May 8 by attorney James Carroll of Middlebury on behalf of Ferrisburgh lists as “Applicable Statutes” 24 VSA, Chapter 67, known as the “Shade Tree Statute,” which places the trees “under the control of the tree warden,” and 19 VSA, No. 1111, which “requires persons wishing to use the public right-of-way to obtain a permit prior to use.” A permit process would have included a public hearing allowing neighbors to have a say.
The town lawsuit seeks court orders to impose a $500 fine for each tree cut; judgments confirming the tree warden’s authority over shade trees within town rights of way, and specifically on Arnold Bay Road; injunctions prohibiting the Vorstevelds from removing trees from Ferrisburgh rights of way or interfering with restorative work by the town on Arnold Bay Road; a judgment requiring the farmers to comply with a shade tree preservation program; and court and attorney’s fees.
So far the only new document from the Vorstevelds in the court folder is an acknowledgment of receipt of the suit. It is signed by attorney James Foley of Middlebury and includes an agreement to file a formal response to the town’s suit by July 8.
OTHER POINT OF VIEW
But the town’s filing also includes earlier letters written from Foley to Carroll on behalf of Vorsteveld Farm LLC that had not previously been made public. They offer looks at the opposing point of view.
In a Dec. 8, 2017, letter to Carroll, Foley wrote:
“The issue here appears to boil down to one issue — is this an overgrown hedgerow which the owner of the land is authorized to cut (reference 19 V.S.A. No. 901), or is this a series of ‘shade trees’ which are referenced in the Title 24, Chapter 67 entitled ‘Parks and Shade Trees’ … neither my Clients nor I see the undertaking, which occurred on their own land as being in violation of law — i.e.: cutting of ‘shade trees’ that are part of a park system.”
The statute to which Foley referred reads: “A person, other than the abutting landowner, shall not cut, trim, remove, or otherwise damage any grasses, shrubs, vines, or trees growing within the limits of a state or town highway, without first having obtained the consent of the agency for state highways or the board of selectmen for town highways.”
Foley adds that it is his and the Vorstevelds’ contention that much of what they removed was relatively recent growth:
“I am aware that (in) the mid 1970s there was virtually no growth along the easterly edge of this stretch of Arnold Bay Road as the prior owner fenced the area and could not have done so with the thick vegetation that existed there (until the recent cleanup).”
In January 2018, before the town and the Vorstevelds engaged in failed mediation — the selectboard had hoped the farmers would agree to a re-planting plan — and the farmers removed more trees, Foley wrote to Carroll the Vorstevelds in fact had no plans to cease and desist:
“The Vorstevelds do plan to continue to improve the area where the ‘alleged infraction’ occurred. Indeed, they will be engaged in appropriate ‘ditching’ along the side of the roadway, installing ‘drain tile’ in their field east of the roadway, and finally, will plan to plant corn in that field this coming spring. In short, they plan to continue farming their fields and providing all of the benefits of ‘pastoral views’ to all who might gravel along Arnold Bay Road.”
In Carroll’s May 8 filing he cites several provisions in the Shade Tree Statute:
•“Shade and ornamental trees within the limits of public ways and places shall be under the control of the tree warden.”
•“Unless otherwise provided, a public shared tree shall not be cut or removed, in whole or in part, except by a tree warden or his or her deputy or by a person having the written permission of the tree warden.”
•A public shade tree within the residential part of a municipality shall not be felled without a public hearing by the tree warden.”
•According to Carroll 19 VSA 1111 gives the selectboard the “authority and duty … to make compliance with the requirements of the Shade Tree Statute a condition of a permit to conduct work within the public rights-of-way.”
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