
    Allen Young, Individually and as Executor v. Town of Royalston, a Municipal Corporation
    
    Superior Court, Worcester, SS
    No. 991654B
    Memorandum Dated November 29, 1999
    
      
      Of the estate of Carl Miller.
    
    
      
      William Reopell, individually and in his official capacity as a member of the Royalston Board of Selectmen, Roger LeBlanc, individually and in his official capacity as a member of the Royalston Board of Selectmen, and Linda Alger, individually and in her official capacity as a member of the Royalston Board of Selectmen.
    
   Hillman, J.

On August 24, 1999, the plaintiff filed a verified complaint seeking to restrain and enjoin the defendants from cutting and removing six trees that are presently standing along Butterworth Road in the Town of Royalston (“Town”). The parties agreed that no work would be done until the hearing of this date. All parties agreed that this Court could conduct a final hearing in order to determine whether the town should be enjoined from removing the trees.

For some time the Town has been concerned about the safe use of Butterworth Road. The Fire Chief, Police Chief, and the Superintendent of the Town’s Department of Public Works (“DPW”) all agree that the road is narrow, drains poorly, and is hazardous in the winter months and during periods of heavy rainfall. The road enjoys the protection of G.L.c. 40, §15C as a scenic road. It is for the most part unpaved, rural in character, and approximately three miles long. There are 12 homes along the road. A video tape produced by the Town shows that the area is densely wooded. In the area where the Town wants to remove the six trees there are two hills. The trees are located near the top of each hill. The valley between the two hills and the grades leading into and out of the valley is the area of immediate concern to the Town.

The Superintendent of the DPW and the Town’s Tree Warden determined that by removing six trees near the crests of the two hills they would improve the area by relieving some of the drainage problems. In furtherance of these goals and pursuant to the procedure set forth in G.L.c. 40, §15C theyjointly petitioned the Town’s Planning Board for permission to remove the trees. The Planning Board, after hearing, failed to approve the petition. The selectmen were not satisfied with the results of the Planning Board’s vote and on July 20, 1999 voted “. . . to support DPW and Tree Warden’s decision to remove the trees that are marked, for reasons of public safety.”

G.L.c. 40, §15C provides

After a road has been designated as a scenic road any repair, maintenance, reconstruction, or paving work done with respect thereto shall not involve or include the cutting or removal of trees, or the tearing down or destruction of stone walls, or portions thereof, except with the prior written consent of the planning board, or if there is no planning board, the selectmen of a town, or the city council of a city, after a public hearing . . .

The apparent authority that the selectmen relied upon to order the removal of the trees was G.L.c. 87, §5 which allows for “. . . the cutting or removal of any tree which endangers persons traveling on a highway ...” The selectmen feel that safety concerns override the provisions of the Scenic Roads Act.

Since the town has seen fit to designate Butterworth Road as a scenic way it cannot ignore the requirements of the statute. While the court is mindful that there may be occasions when there is a tension between the scenic roads provisions of chapter 40, §15C and emergency situations this is not such an emergency. The good faith of the Town in attempting to correct the drainage problems on the road and to provide for a safer way are unquestioned by the court. However, the situation confronting the selectmen did not rise to the level of an emergency.

It is a simple, irrefutable fact that the road enjoys the protection of the Scenic Roads Act. That statute sets forth specific procedures which must be followed in order to remove trees along such a way. Those procedures were attempted and failed. There is no prohibition in the statute against reapplication. The efforts of the Town to circumvent the Scenic Roads Act and to utilize the provisions of chapter 87 are unlawful and are hereby enjoined.

ORDER

The defendants, their agents, servants, and employees are permanently enjoined from cutting or removing any part of any tree on Butterworth Road in the Town of Royalston without employing the procedures outlined in G.L.c. 40, §15C or in the absence of an emergency. For the purposes of this ORDER an emergency shall mean an unexpected circumstance or series of circumstances posing an immediate threat of loss of life or property. 
      
      The Town has a five-member planning board. Only four members attended the hearing and the vote was 2-2.
     