BATTLE OVER TREE ENDS WITH REMOVAL OK

The 100-foot tulip poplar, center, became a lightning rod for opinions about Fair Haven’s tree law.  (Click to enlarge)

By JOHN T. WARD

After nearly a year of controversy, a 100-foot tulip poplar that rallied both supporters and detractors of Fair Haven’s tree preservation law is coming down.

With members saying they were swayed by the “compelling” testimony of an arborist last week, the borough planning board reversed itself Thursday night, giving builder Bob Susser of Rumson an OK to remove the tree on the site of a three-home development on Woodland Drive.

The law, written to prevent clear-cutting, prompted gnashing of teeth even among officials who relied on it to repeatedly deny Susser of Buttonwood Investors, a permit to take down the tree. They said the law was poorly written, giving them little or no guidance on how to handle appeals. One board member called it “spongey.”

Over the course of the last ten months, Susser had a permit granted; rescinded over concerns about a conflict of interest involving the borough code enforcement officer; denied by the borough administrator; and rejected on appeal of that denial by the planning board. The board also shot down Susser’s request for a re-hearing of the appeal.

Last week, however, Susser was back before the board, again asking to remove the tree or, in the alternate, to amend a site plan than the board had previously approved, before the board was drawn into the tree issue.

At the March 14 hearing, Michale LaMana, an arborist hired by Susser testified that the tree, while healthy, was at risk of “catastrophic failure” because of its bifurcated trunk, size and brittleness.

LaMana’s conclusions matched those of two other tree experts, including Bill Brooks of Red Bank, Fair Haven’s contractual tree enforcement officer. But because of the substantive similarity in testimony of the arborists, board members faced the question of whether they had the right to vote again on the matter or were barred from doing so, as several neighbors argued they were, by the legal principle of res judicata, which says, in essence: the matter has been decided and may not be voted on again.

The case was carried until a special meeting Thursday so three members who were absent from the March 14 session could listen to a recording of the hearing in order to vote. And when the matter resumed, a 4-2 majority of board members concluded that LaMana’s testimony had been so “compelling” as to merit a reopening of the matter.

In a unanimous vote, Susser finally won approval.

“They got me with ‘catastrophic failure,'” said Chairwoman Joan Jay. “It’s time to put this to bed.”

Two other board members said they had been anguished by thoughts of a tree limb falling on someone.

“I couldn’t live with myself if a large branch fell down and hit somebody in the head and killed them,” said Alison Dale.

Afterward, a neighbor asked if the borough would alert neighbors before the tree came down and have an official on site when it does.

Susser tells redbankgreen the tree will be cut down as early as next week.

He said he agreed with councilman and planning board member Bob Marchese, who contends the law is unconstitutional as it applies to property rights. Additionally, Susser said the law is flawed in that it was used to force him before a planning board, which deals with land-use matters and is not equipped to interpret or apply the tree law.

“Thank god that reasonable minds prevailed,” he said.

The tree had previously been described by experts as 60 feet or so tall, but LaMana testified that laser measurements put it at 100 feet. He also estimated that it had put down roots as early as 1930.