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Tree Planting Servitudes

by Buck Abbey, ASLA, The Green Laws Organization, New Orleans, Louisiana





How do tree planting servitudes (TPS) work? An area of the site is sized to match a certain species of desirable tree (class A, B, or C), or even a tree grove, if more than one tree is agreed to by both parties. The TPS area, as seen in the drawing, is attached to the property line, usually at the front of the site where it also serves as sidewalk shade. The TPS area, (1,600 sq. ft. for class A, 400 sq. ft. for class B, or 225 sq. ft. for class C species), is set aside by the landowner and the city forestry office plants a tree that the property owner looks after, maintains and enjoys as his own.


"The creation of community tree policy should be a guideline for the future...."
--Tree Conservation Ordinances, American Planning Association 1993

The lawsuit between Jackson Township and New Jersey Shore Builders settled in the Supreme Court of the State of New Jersey (New Jersey Shore Builders Association v. Township of Jackson, 401 N.J. Super. 152, 949 A.2d 312 (App. Div. 2008)) sheds new light on the importance of tree laws and trees.

At issue was the validity of a community to protect its trees though the use of a tree protection ordinance requiring replacement trees, offsite planting and or mitigation costs. Since offsite planting of replacement trees has been ruled a remedy by the Supreme Court to mitigate onsite tree removal, one must then ask the question, "Why doesn't the public, at taxpayer expense, plant trees on private property to ensure the continuation of a viable urban forestry canopy?"

Offsite planting is a legitimate land use management decision toward ensuring good air quality in a community. When trees are removed, new trees ought to be planted on available land; that includes private land that is open, accessible and available.

But many say, "Oh no, you can't use tax money. Public money cannot be used to improve private property!" This is certainly contrary to the response of the Jackson Township ruling. If trees and tree canopy are a community environmental necessity, and it is not possible to plant trees on public land, what can a community do?

Tree Planting Paradox
One must therefore conclude the public must plant trees on private land, since they make up the vast, vast majority of planting space in a community. If trees are needed to sustain community health, safety and provide a beneficial urban forest canopy, then the public has a responsibility to plant trees where space is available; that means even on private property at public expense. That is the "community tree planting paradox."

But there is another way to plant trees on private property that has not been explored nor exploited. Tree planting servitudes (TPS) can assist in solving the tree planting paradox by allowing public trees to be planted on private land under contract.

 




Private lands subject to a conservation easement can never be paved over, used for building houses, mined, nor subdivided into smaller parcels. Conservation organizations, state and federal agencies encourage this type of natural resource conservation to better air and water quality, maintain wildlife habitat, preserve or augment the tree canopy and keep scenic vistas for future generations.



Tree Planting Servitudes
The Land Trust Alliance (landtrustalliance.org) has long used the tool of conservation easements to protect unique natural resources. A conservation easement (or conservation restriction), explains the Land Trust Alliance, is a legal agreement between a landowner and a land trust or government agency that permanently limits uses of the land in order to protect its conservation values. A conservation easement allows the landowner to continue to own and use the land, and to sell it or pass it on to heirs, although such easements are usually donated.

In cities, "public servitudes" do much the same thing as conservation easements. They set aside private property by the surrender of certain property rights for quasi-public services, such as water, gas, electric, cable, drainage, or for safety purposes.

A tree planting servitude on private land is a legal mechanism under Anglo-American law that allows the public to plant trees on private property. The servitude is granted by the voluntary contribution of the landowner to temporarily give up some rights to the use of the land. This must be a written agreement and usually extends for a limited term. Whereas utility servitudes are perpetual and exclusive grants, tree planting servitudes are voluntary and usually for the ownership of the grantor or natural life of the tree species.

In a TPS, an area of the site is sized to match a certain species of desirable tree (class A, B, or C), or even a tree grove, if more than one tree is agreed to by both parties. The TPS area, as seen in the drawing, is attached to the property line, usually in the front of the site where it also serves the use of providing walkway shading. The landowner sets aside the TPS, which is determined by the size of the tree(s). The city forestry office then plants the tree(s), which the property owner looks after, maintains and enjoys as his own.

Drafting the Agreement
An agreement must be drafted that spells out the articles of agreement. Since this is a simple servitude agreement, one to lease a spot for tree planting in effect, it does not require excessive legalese, just a simple contract between the tree planter and the tree keeper, similar to tree conservation ordinances as reported by authors Duerksen and Richman (APA Pass Report 446, 1993). This agreement must be in plain English, concise and limited to no more than two pages. It must be recorded with the clerk of court however to ensure it legal implications.

Landscape Laws and Trees
The public jumped across the private property line in the 1960s when landscape codes called for the planting of trees on private property following new construction. These public ordinances called for the planting of street yard buffers, minimum canopy standards and parking lot shading trees. Street tree planting servitudes simply allow those with available land to lease to the public a bit of private property to increase a city's tree canopy.

Should readers care to contact the author, get in touch by email at lsugreenlaws@aol.com, or you may call Abbey Associates Landscape Architecture at 225.766.0922.







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