Tree-Related Laws in Connecticut
Continuing with our theme of tree law, tree law cases, and tree law decisions in Connecticut, let’s take a little pause to consider the origins and purposes of Connecticut tree laws. Knowing what to do when a tree fails is important. Knowing why Connecticut has set specific rules for dealing with tree law issues is also important.
Connecticut trees, whether planted or natural, can pose all kinds of safety and liability problems. Fallen trees and branches can injure people, cause severe property damage, and obstruct traffic as well as power lines. Because trees can pose growing risks to safety, Connecticut law requires property owners to maintain a reasonable standard of care to manage trees on their property. Trees that are determined to be a nuisance can lead to civil damages if a court or jury finds the trees are a threat to life or limb, or cause other damages. Connecticut law specifically carves out areas where prior notice is required before a lawsuit can be filed against a municipality for damage for injury or destruction involving a tree that has fallen.
Additionally, Connecticut recognizes the right of its municipalities—cities and towns—to pass individual ordinances and local laws dealing with the care and treatment of trees. While most towns in Connecticut have not exercised their right to pass tree protections , some municipalities have passed ordinances for the greater protection of trees within their borders. These local rules, like state law, are important to local residents depending upon the regulations imposed by their municipality.
Trees can also be a common issue when it comes to eminent domain and property seizures of real estate (including eminent domain for public parks as we noted in our post earlier this month). Eminent domain issues can result in tree removal when an entire tree must be removed to make way for new construction or road expansion. In other situations, there are ways to sever just the roots or lower limbs of trees without damaging the tree.
In addition to all these legal issues, trees are a matter of aesthetics and the value they bring to our towns, suburbs, and cities add to the quality of life in Connecticut. Trees are a part of the fabric and character of Connecticut. Tree laws and decisions are important to protect the opportunities to see and experience trees in the state.
Tree law in Connecticut is complex and sometimes challenging. Hopefully, this post provides some useful information to appreciate tree laws even more.
Owners’ Rights and Abilities
Tree care and maintenance for oak trees, sugar maple and red maple and the majority of other hardwood species are the responsibility of the property owner. The Connecticut Supreme Court has said that "each landowner abutting a public highway has the right to trim overhanging branches of trees on the highway only where such abatement of a nuisance results from the exercise of reasonable care on the part of the landowner" and "the landowner also has the right to cut down trees growing upon his land and descending roots which have encroached on the beneath surface of the highway." See Sgaraglini v. New Haven, 147 Conn. 379, 162 A.3d 764 (1962).
A property owner is responsible for maintaining the trees and removing those that are diseased, infested with insects or might otherwise endanger persons or property. Liability issues may arise when the owner was on actual or constructive notice that a tree or branch posed a threat, the owner failed to act on the threat, and damage was caused to another. Such actions can be seen as an intentional, willful or negligent act or omission. See Dubrosky v. Groebli, 49 Conn.App. 746, 747, 716 A.2d 885 (1998). In the event that a tree abuts a neighbor’s property, a reasonable amount of encroachment can be expected and where there is no evidence that the property owner directly contributed to the tree’s encroachment, the property owner that has not engaged in any willful or intentional acts regarding the tree will not be liable to the neighboring property owner in negligence. See Girolametti v. Papadopoulos, 93 Conn.App. 11, 16, 888 A.2d 162 (2006).
Common disputes between property owners encompass issues such as trees in the right-of-way, determining property lines and the liability for removal of a neighbor’s dead tree that poses a risk to your home, garage or shed.
CT Municipal Ordinances
In addition to the State of Connecticut’s CT Tree Law, individual municipalities have their own tree ordinances that must be followed. These ordinances are important because they can significantly differ from the CT Tree Law.
Some allow private plaintiffs to sue tree trimmers directly for more types of damages than are permitted by the CT Tree Law. Others statutorily prevent homeowners from bringing claims for tree damage. Below is a summary of the tree ordinances in Connecticut’s most populated cities and towns.
Bridgeport provides that any owner who, by action or inaction, causes a defect in a tree that has caused or is likely to cause injury, shall be liable for damages to the tree or damages to the property of others as a result of the defect.
Fairfield imposes a duty on owners to keep trees overhanging a public way free of defects. Owners can be found liable for injuries caused by the failure to remove defects.
Hartford expressly permits homeowners to bring claims against a tree trimmer that negligently damages their tree(s) and allows for recovery of both property and consequential damages.
New Britain imposes a duty on owners to keep trees free of defects that might be dangerous to others. Homeowners can be held liable when a defect causes injuries to neighbors and others.
New Haven charges the tree owner with the duty to maintain trees free of defects. If the failure to remove a defect causes injury to another, the owner can be found liable. Most importantly, it gives the homeowner a choice between suing the city or the trimmer for damages.
New Milford has a very general ordinance that simply provides that owners "shall be responsible to keep ornamental trees and shrubs free from defects dangerous to traffic." The obvious implication is that an owner who fails to remove a defect in a tree that causes injury will be liable.
Stamford allows private plaintiffs to bring actions against a trimmer who negligently damages a tree. It allows for the recovery of consequential as well as property damages. Damages are capped at $300 for trees with a value of $1,000 or less.
Waterbury imposes a duty on all property owners to keep trees free of defects. Any owner who causes an injury through the failure to remove a defect is liable to an injured plaintiff.
West Haven has a very similar ordinance to Waterbury, but gives the Court more discretion in setting damages.
Woodbridge does not require tree owners to keep trees in healthy condition. Claims are not statutorily allowed against trimmers. Likewise, there is no language regarding damages to any property other than the trees themselves.
While other municipalities do have trees ordinances similar to the above-mentioned cities, the above analysis generally applies to most of Connecticut’s populous cities.
Municipal ordinances help determine where you should file your CT Tree Law Claim. It also tells you where you can bring a claim against a tree trimmer or property owner.
Protected Trees in CT
Protected tree species enter a protected status under Connecticut law when they are determined to be in danger of extinction and designated as "endangered," "threatened," or as a "species of special concern."
Connecticut General Statutes Section 26-303, with certain exceptions, prohibits any person or municipality to unlawfully take any plant species that has been stated by the Commissioner of Energy and Environmental Protection to be endangered, threatened or a species of special concern. A landowner may not lawfully take a tree listed as endangered, threatened or a species of special concern without a permit from the Connecticut Department of Energy and Environmental Protection (the "Department") pursuant to C.G.S. § 26-310.
If a landowner receives a permit to take a protected tree, the permit will only be issued if the Department is satisfied that: (1) the tree cannot be practically or economically replaced on the premises; and/or (2) a practical alternative to the taking exists; or (3) failure to take the tree would significantly and adversely affect the conduct of the landowner’s activity. C.G.S. § 26-310(a). In addition, when issuing a permit to take a protected tree, the Department is required to specify the conditions, if any, that must be satisfied prior to removal. Id.
The Department may seek to impose a fine of between $100 and $1,000 on any person who violates the taking prohibition of an endangered or threatened tree species. C.G.S. § 26-311(b). Any individual who is found to have committed a violation of the taking prohibition is liable for each day the violation occurs. Id.
Resolving Tree-Related Issues
As with other property disputes, trees are often subject to disagreement and legal wrangling. The most common disputes between property owners involve damage or interference done by trees, and more specifically, the vines and roots of trees which will often grow in and disrupt the properties they are on, as well as the properties nearby. Trees which grow too large or are planted too close to a property line can drop parts of their tree onto neighboring property (e.g. branches, leaves, nuts, sap, etc.), causing damage to fences and other structures. Trees which lean onto an adjacent property may even fall onto a neighboring property (often during a high wind or snow event). The Connecticut property law concept of "joint ownership" of a tree can also complicate things, since a joint owner must give consent before damaging or removing the tree. Other tree-related disputes include damage done to trees by tenants, damage done to trees by animals or insects, and damage done by utility companies.
When damage is done to a neighbor’s property, the harm usually must be "negligent" (meaning that the owner did not actively intend to cause the damage but did so anyway) or "intentional," or a direct result of the activity being done on your property. (Ex: Cutting down a tree that drops needles on a neighbor’s property may not be considered negligent.) Disputes over whether trees have been intentionally damaged often arise due to the statue of limitations in Connecticut , which provides that injured parties have three years from the date of damage to file suit over property damage, but the three years is "tolled," for the time that a tree owner exercises care over the tree (i.e. makes efforts to address or remedy the problem). Thus, if a tree owner does take action to help remedy a problem with a tree, such as by trimming it or even cutting it down, the three-year statute of limitation clock for a neighboring plaintiff stops running while the tree owner is doing those remedial acts.
There are also several ways a tree issue can be resolved without going to court. The two primary forms of alternative resolution used to settle disputes are mediation and arbitration, and both are forms of "binding" dispute resolution, meaning that the determination of the mediator or arbitrator becomes legally binding on the parties. Mediation is generally the preferred first step in dispute resolution, and involves one or more neutral mediators who seek to facilitate the parties coming to their own settlement. Mediation can be done in person, by phone or through video conference, and can also take place at the parties’ convenience. Arbitration, on the other hand, is run like a mini-trial (albeit one which does not include a jury, and requires a judge). Arbitration is often less expensive than traditional litigation, however, if a party is dissatisfied with an arbitrator’s decision, the party is generally stuck with it.
CT Law’s Effect on the Environment
Connecticut has become an increasingly urbanized state, with population growth consistent from both the 2010 and 2020 census reports. It is also experiencing an ongoing environmental crisis due to climate change. Climate change and tree loss are closely linked, as trees have long served as one of our most dependable and effective resources for cleaning air and sequestering carbon. According to both the Department of Energy and Environmental Protection (DEEP) and Yale School of Forestry and Environmental Studies, Connecticut boasts a strong tree cover of over 60% statewide. This is not only a matter of aesthetic or maintaining a healthy ecosystem; in regard to our Barnes Heath Project, it is also the law in Connecticut. Connecticut’s tree laws call for the establishment of Town Tree Commissions that regulate every aspect of our interaction with trees: from trees within residential subdivisions, to town parks, to trees lining public streets. These laws help maintain the state’s tree canopies by providing important protections for trees and penalties for anyone removing trees without a permit. In CT, There are 3 ways in which tree laws protect trees. They are: 1) Tree Protection Zones (TPZ); 2) Tree Replacement Requirements and 3) Penalty Mitigation / Compensation Payments. Tree Protection Zones (TPZ): Tree protection zones are mandatory for protecting trees on any property that is being actively developed. Simply put, if tree canopies are to be maintained, then trees on that site must be protected. If property is being developed that could potentially result in the loss of tree canopies in your neighborhood, the Tree Commission must be notified. Tree Replacement Requirements: Once it has been determined that a tree or trees will be lost due to a new construction site, the tree replacement requirements call for identification of that tree or trees and a 1:1 replacement planting ratio. In addition, a Tree Protection Plan is then developed and implemented. Penalty Mitigation / Compensation Payments: The Tree Commission is also authorized to impose penalties for violation of any of the above tree laws. Specifically, if you are found to have violated an established Tree Protection Plan, the Tree Commission is authorized to impose a penalty of $200.00 for the first violation, $300.00 for the second violation, and $500.00 for the third and any subsequent violations. However, the Commission may waive these penalties if the violator can demonstrate that a Tree Protection Plan had been established prior to the tree removal and that the tree removal is justified under the circumstances. For our clients at Barnes Heath, this means that trees on the property being developed will need to be preserved by following a strict implementation of the Tree Protection Plan, or else mitigation payments of up to $500 will be needed for each tree removed. Clearly then, tree laws heavily impact development at any site throughout the state of Connecticut.
Changes, New Legislation and Proposals
Connecticut is poised to make some changes to its established laws pertaining to trees and privately owned trees situated on sidewalks, streams, wetlands and areas used for purposes of drainage. While no such law had existed prior to 2009, in 2009 the Connecticut legislature enacted C.G.S. §22-48 which stated as follows: "Limitation of liability for removal of trees and shrubby growth on private property to maintain safety of the public. (a) Notwithstanding any provision of the general statutes and any municipal charter provision or ordinance to the contrary, a property owner may, through the owner’s employees, agents or contractors, take reasonable actions or measures to maintain safety on the public highway, as defined in section 13a-1, on or adjacent to the owner’s property by removing trees and any other obstructions in accordance with this section. (b) (1) Any such tree, tree root, shrub or other obstruction that is within eight feet of any portion of the traveled way on a public highway, as defined in section 13a-1, and, as a result of such tree, tree root, shrub or other obstruction, a vehicle is caused to strike another vehicle or a person, shall be deemed to have created a dangerous condition and the owner of the premises where such tree, shrub or other obstruction is located shall be liable for costs and damages resulting therefrom. The maintenance, trimming or removal of any such tree, tree root, shrub or other obstruction may be performed by a property owner or such property owner’s employees, agents or contractors, at such property owner’s expense, provided such tree, tree root, shrub or other obstruction is any of the following: (i) Up to fifty feet from a point of intersection directly across the highway from the property line of the premises; (ii) Within the sight line of a street sign as delineated by the Connecticut Manual on Uniform Traffic Control Devices, as amended from time to time; (iii) Within six feet of the edge of the traveled way on a public highway; or (iv) Situated within fifteen feet of the edge of the traveled way on a public highway and obstructs the view of a motorist traveling upon such highway. (2) Such property owner shall not be liable for costs or damages caused by a motor vehicle that struck a vehicle, structure or person when such motor vehicle was being operated by a person who was not authorized by such property owner to operate such motor vehicle and such property owner had not given express or implied consent to such operation. (c) For the purposes of this section, "obstruction" means any shrub, bush, tree, tree root or tree limb that obstructs the safe and free passage of persons traveling on such highway and does not include any fence, wall or building situated along such highway in accordance with any applicable zoning regulation or building code adopted by a municipality." Since the enactment of CGS §22-48, there have been a number of additional laws and judicial decisions interpreting CGS, §22-48. For example, a recent decision by the Connecticut Appellate Court in the case of Nwankwo v. Parks placed one such limitation on CGS §22-48. In Nwankwo v. Parks, the Appellate Court determined that CGS §22-48 only applies to claims related to actual injury at the location where the tree was located, not anywhere else along the highway. In that case, the Court found, as a matter of law, that the injury did not take place at the actual location of the tree. In doing so, the Court held that a party is prohibited from recovering from an abutting landowner or occupier who has violated the municipal ordinances and state statutes requiring maintenance of objects and vegetation, to the extent that the wrongful maintenance was a proximate cause of the injury. Therefore, a party unable to show that the injury occurred at the location of the tree may be barred from making a claim against the tortfeasor under CGS §22-48. Subsequently , in 2010, Connecticut passed CGS §22-481 which allowed for the use of the quadratic formula (x^2 + y^2 = r^2) to be applied in tree height determinations. To avoid confusion, that section states: "Unreasonable risk of harm. (a) For the purposes of this section, "tree brightness zone" means the entire area equidistant from the tree trunk at the height of the topmost point of the tree; and "angle of divergence" means the angle calculated as the arctangent of the radius divided by the tree height where the height is measured from the tree base to the topmost point of the tree and the radius is measured from the base of the tree to the tree brightness zone. (b) No person owning or occupying land adjoining the public highway, as defined in section 13a-1, shall maintain any tree or other object so as to unreasonably endanger the safety of persons and property. (c) In determining whether a landowner has maintained a tree or other object in a manner that has created an unreasonable risk of harm to the safety of persons and property, the trier of fact shall apply the following formulas: (1) If the height of the tree plus thirty-seven and five tenths (37.5) percent of the distance from the base of the tree to the tree brightness zone exceeds two hundred feet (e.g. a 60 foot tree with a 60 foot radius has a total height of 60 + 60 * 0.375 = 75 feet, making the tallest tree allowable below the threshold 53 feet and any tree above that amount would be considered a potential danger), it shall be presumed that the landowner has created an unreasonable risk of harm to the safety of persons and property; (2) If the height of the tree plus twenty-two and five tenths (22.5) percent of the distance from the base of the tree to the tree brightness zone does not exceed eight feet (e.g. a 60 foot tree with a 60 foot radius has a total height of 60 + 60 * 0.225 = 75 feet, making the shortest tree allowable below the threshold 58 feet and any tree below that amount would be considered a potential danger), it shall be presumed that the landowner has created an unreasonable risk of harm to the safety of persons and property. (d) The provisions of this section shall not be construed to alter or affect in any manner the application of the common law relating to any claims against any landowner, occupant or any person responsible for the condition of any land." In light of these present and past statutory changes, legislative amendments are being considered for 2014 which include the most recent proposal to remove the requirement that a landowner take "reasonable actions or measures to maintain safety on the public highway . . . by removing trees and any other obstructions." Conn. Gen. Stat. § 22-48 (stated above). This is being done in order to provide at least minimal rights for people injured by falling foliage anywhere on the road. The proposed bill provides for "strict liability" where a landowner having control over a tree is required to take reasonable action to prevent a reasonable risk of harm if: (1) the tree poses a risk of harm to the public including the potential for a falling branch or limb and (2) this risk can be abated only by removing the tree. Such legislation would mean that landowners who own unhealthy trees or trees whose roots are near public sidewalks could be at risk even though they may be several feet away from the sidewalk or road shoulder. By the same token, this also provides individuals the ability to file suit against landowners whose fallen limbs, branches, or trees injure their persons or property. As these changes continue to evolve, it is important for individuals to remain abreast of any new provisions. Such provisions will not only affect the landscape of the Connecticut public highways, but may also impose additional obligations on landowners as it relates to the safety of their property.
