It took months of hours-long meetings, and the filing of a lawsuit by the property owners, but the silver maple at 318 Country Club Drive in Rehoboth has been cut down. The city issued a permit to remove the tree April 30, and by the morning of May 2, the 56-inch caliper trunk was lying on the ground.
Felling of the tree is what should be the last episode of a nearly year-long saga. John and Winifred McKenna and Mary Ann Sartain requested permission to remove the tree last summer, but were denied by city Arborist Liz Lingo. That prompted them to file an appeal to the parks and shade tree commission.
In a report prepared for the shade tree commission’s hearing in October, Lingo estimated the tree to be approximately 150 years old with a 56-inch caliper, defined by city code as the diameter of a tree trunk measured one foot above the ground. During that hearing, evidence, in the form of a picture, was presented showing the tree was more recently planted. The property owners estimated it is 50 to 60 years old.
Ultimately, the shade tree commission voted to allow the property owners to cut down the tree, but pay a $3,500 fee in lieu of mitigation. Shortly afterward, Rehoboth property owners Julie Davis and John Metz filed an appeal of the shade tree commission’s decision. The appeal was co-signed by nearly 50 other property owners.
In December, Rehoboth commissioners held an appeal hearing and upheld the shade tree commission’s decision. In February, the commissioners confirmed the minutes and decision from the December meeting, as written by attorney Max Walton, who ran the appeal hearing. More recently, the McKennas and Sartain filed a lawsuit with Sussex County Superior Court in March arguing the fee in lieu of mitigation was an unlawful tax.
During a special meeting April 24, following an executive session with Walton, Rehoboth commissioners voted 5-1 in favor of settling with the Country Club Drive property owners by waiving the fee in lieu of mitigation. Commissioner Stan Mills recused himself and Commissioner Toni Sharp voted no.
The amount of $3,500 is grossly disproportionate to the city’s direct and indirect permitting costs, said John McKenna, in the suit. Additionally, he wrote, there is no direct relationship between the $3,500 fee charged and a service received by the property owners or a burden to which it contributes.
In an email May 1, Mayor Paul Kuhns said the commissioners agreed, that rather than take the issue of the fee in mitigation further through the courts at an enormous cost to the city’s citizens, the fee would be waived in the case. When asked if the city’s decision to waive this fee in lieu of mitigation would affect the city’s ability to enforce the fee in the future, Kuhns said the decision is relevant to this case only.