Mayor breaks Ben Avon tree law tie

By LOIS THOMSON

Ben Avon Mayor Robert Jones commented at Tuesday's borough council meeting that he thinks council "took something simple and turned it into a legal quagmire." He was referring to the draft shade tree ordinance, which would include establishing a shade tree commission.

"This," he said, holding up two sheets of paper, "was the old ordinance. And this," he said, letting a sheaf of papers he had taped together fall to the floor in a string, "is the new ordinance."

Council member Sue Weiss, who had volunteered to write the draft, had asked borough solicitor Chuck Means to provide ordinances from other communities to use as a guide. She drafted the original ordinance that council discussed last month, and at this meeting said she incorporated into a revised version some of the changes she received from other members of council since the August meeting.

She emphasized that the ordinance would not be an invasion into private property, but would also not take away the borough's right to protect its citizens. "The spirit of the ordinance is to create a citizen's body to advise council and manage the trees we already have," Weiss said.

However, council questioned some of the language in the document and exactly how it could be interpreted. R.J. White, for example, referred to a section that requires permits for certain acts, and asked why, if residents are allowed to have control over their property, they have to get a permit to cut their trees. Weiss explained that that was targeted at utility companies, so that they can't trim trees without getting a permit. However, Means spoke up and said that utility companies come under the jurisdiction of the PUC, and have the authority to do what they want.

Jones said he is concerned that a phrase saying council shall have "exclusive custody and control" of shade trees in the borough violated the Fourth Amendment of the Constitution regarding seizures. He added that he has a fear that the complicated language in the ordinance could place the borough in a compromising legal position, and said this could place a burden on borough employees who do not have time to enforce it. Jones further informed council that as mayor, he "will not sign any such document into law."

Weiss said the function of the commission is merely to guide council and to protect trees. "The commission will work with property owners to plant trees and care for them. It will attempt to protect trees from people who are careless. The intent (of the ordinance) is to trim things that block the public right of way."

But Earl Bohn replied, "I believe that's the intent, but that's not what it says. If that is your intent, we don't need to give council control. We could be subject to lawsuits."

White added, "If an owner's private tree falls and injures someone or something, we're responsible for it, based on this language."

Part of the reason for wanting an updated ordinance is that TreeVitalize, an organization that helps to restore tree cover and educate citizens about planting trees, will donate trees to communities that have both a shade tree ordinance and a shade tree commission. Jones said Ben Avon already has an ordinance -- "one that has been successful for 104 years." He added that the ordinance allows council members to serve on a tree commission, and/or to appoint residents who would like to be on such a committee.

White said, "If our goal is to create an advisory commission, let's do that and make everything else a separate ordinance." No one, however, followed his lead.

Realizing that more discussion was not likely to resolve anything, Weiss finally asked council to vote on the ordinance. The vote was tied at 3-3, with Weiss, Michael Bett and Lloyd Corder voting in favor, and Bohn, White and Rob Galbraith dissenting. Brian Tokar was absent. Jones then cast the deciding vote, against the ordinance.

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