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A word at the heart of the New London shade tree controversy

June 18, 2024, 10:35 a.m. • Last updated: June 18, 2024, 10:35 a.m.

Maggie Redfern, president of New London Trees, was one of several residents who spoke out about a plan to eliminate the city’s tree care standards on Monday, June 17, 2024. Redfern is seen here at the intersection of Montauk Avenue and Plant Street in New London on Tuesday, Dec. 20, 2022 (Sarah Gordon/The Day file photo) Buy photo reprints

New London – As the City Council appears to be moving closer to a compromise that would prevent the dissolution of the dormant Shade Tree Commission, members were told Monday that the repeated use of a single word – “shall” – in a 14-year-old document must be addressed.

During a joint meeting of the council’s Finance and Public Works Committees, members and city officials discussed the possibility of not dissolving the Shade Tree Commission as previously proposed, but instead simply repealing a set of tree care standards dating to 2010.

Officials including Mayor Michael Passero and Law Director Jeffrey Londregan recommended last month that the council scrap the standards and disband the commission. The recommendation was in response to a “large, adverse” civil judgment the city paid out last year in a negligence lawsuit. The plaintiff had been injured by a fallen tree years ago and had successfully litigated against the city.

This case prompted CIRMA, the city’s insurance carrier, to recommend that the city eliminate both the standards document and the commission to reduce the city’s liability exposure and instead rely on state law and the discretion of the tree warden, as most other municipalities do.

Londregan said the repeated use of the word “shall” in the standards makes tree maintenance in New London a “ministerial act,” or a required action, rather than a discretionary decision, and strips the city of government immunity if it is sued for negligence.

He said it would be nearly impossible to simply remove the offensive word because it appears so frequently in the standards.

“(Should) appear in almost every sentence,” Londregan said, pointing out that the term automatically requires the city to follow a strict tree inspection and maintenance schedule that leaves no legal wiggle room.

Londregan said there is nothing standing in the way of developing new tree standards that will maintain the spirit of the original document but will not involve the city in litigation.

Several committee members seemed surprised that the Shade Tree Commission, which is made up of members of the Inland Wetlands Commission, had not met in years. Passero said he could not recall the group meeting since he was first elected in 2015.

Londregan said he was confident neither he nor CIRMA would have “sleepless nights” if the council ultimately decided to leave the commission intact, but he pointed out that much of the group’s work is carried out by the nonprofit New London Trees.

He said eliminating the standards would not lead to “chaos” or less protection for the city’s trees, as the state’s relevant laws and the tree warden’s discretion would serve as “training wheels for the future.”

Councilwoman Alma Nartatez pointed out that the city has not had a permanent tree warden since David DeNoia retired several months ago. Public Works Director Brian Sear is serving as interim warden.

“This is a perfect opportunity to renew the program without eliminating what we already have,” Nartatez said.

Several residents at Monday’s meeting, including New London Trees President Maggie Redfern, questioned whether the proposed dissolution measures were too drastic.

“How can no plan be better than an ambitious plan?” asked Redfern.

Passero and Londregan both emphasized the city’s commitment to its trees.

“Nobody is declaring war on the city’s trees,” Londregan said.

Passero said the city is close to hiring a full-time tree warden and he is aware of concerns raised by citizens and committee members about the repeal recommendations.

“But I believe we have a duty to be fiscally responsible and to do that in a way that doesn’t expose us to a judgment that wouldn’t be covered by our insurance policy,” he said. “So we’re facing the loss of our insurance coverage or another dramatic increase in our deductibles and premiums.”

Committee chairs voted to continue tree discussions in July with the goal of presenting a recommendation to the full council later that month.

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