On Tuesday the Planning & Zoning Commission reviewed an application from Old Greenwich residents who want to modify a Declaration of Restrictions on an approved final subdivision that included their property and adjacent open space.
The applicants seek to modify a declaration of restrictions on open space after removing trees without authorization.
Back in 1987, the P&Z commission approved the final subdivision for 4 building parcels. Conditions included setting aside open space in perpetuity.
Lot 2, now 21 Tomac Ave, featured a significant 64-inch maple tree, and as part of the approval, the P&Z commission designated a 25‐foot radius “restricted area” around it and its critical root zone for protection. The “restricted area” extended into the adjacent open space parcel jointly owned by the 4 subdivision lot owners.
A few years ago the tree was removed without prior authorization from Planning & Zoning by the owners, Trevor and Teresa Fellows, who are now requesting relief from the restriction.
“Something is happening behind this house where it seems the open space is not open space any more, but manicured lawn.” Commissioner Nick Macri
The Inland Wetlands and Watercourse Agency noted six native shade trees had also been removed from the open space close to where the 64” tree was removed.
The Fellows purchased 21 Tomac Ave in 2020. It is .3580-acres in the R-12 zone.
Their attorney, Chip Haslun, submitted a letter saying the open space declaration was vague on restrictions.
“During the subdivision of this and other properties on Tomac Avenue in the 1980s, an open space parcel was designated for ‘park and playground purposes’ to the north and northeast of 21 Tomac Avenue,” Haslun said adding that his clients were unaware of the restrictions requiring them to seek permission before removing, but that the tree was rotten and posed a safety hazard.
“I’m hoping that the commission would look at this and say, had the Fellows come in before us in 2020 and asked permission, that hopefully you would have granted it,” Haslun said, adding that none of the neighbors objected to allowing the restriction to be removed.
He said the Fellows didn’t recall learning about the restrictions at their real estate closing, which took place during the pandemic, in a garage, participants wearing masks, and with minimal interaction with the attorneys.
“So we hopefully see homeowners being more educated about the places they purchase in the future.” – Kate Dzikiewicz, director Greenwich Tree Conservancy
Haslun explained the applicants had worked with Wetlands in 2021 to plant six new trees to replace five that were rotten plus the large 64″ maple, and believed the situation had been satisfactorily resolved.
“The matter was closed. Inland Wetlands was satisfied with the mitigation and response and they thought that was the end of the issue,” he said. “It wasn’t until 2024 when the Fellows were making modifications to their house and to possibly put in a pool that it came to their attention from P&Z staff and new Wetlands staff that there was an additional deed restriction about the Maple tree, and the 25-ft circumference around it that was partially on their property and partially in the open space.”
“I have never been referred to as a perpetrator before. Hopefully that is the last time.” – Trevor Fellows
“The Fellows apologize,” he said. “They did not know they need your approval prior to taking it down, but as you can see the tree was rotten to the core and had to come down.”
Haslun said the applicants have hired local landscape architect Matt Popp to come up with a landscape plan.
Commissioner Nick Macri said his main concern was the “significant incursion” into the open space.
“Something is happening behind this house where it seems the open space is not open space any more, but manicured lawn,” he said.
Macri suggested that prior to returning to the P&Z commission, the applicant should speak to the Wetlands Agency and Conservation. He said the Wetlands upland review area appeared to go right up to the middle of the house, requiring detailed discussion of restoration.
“Not just planting six trees,” he said. “We’re kind of resetting the clocks back to zero. Back in 1988, that this was undisturbed open space.”
“When you return to us, bring an approved landscape plan approved by Wetlands, with Conservation input, and an updated zoning locations survey to make sure that that none of the structures built are an incursion onto the open space as well,” Macri said.
Further, Macri said some sort of demarcation line of the open space should be established to prevent incursion.
“We’ve talked about fences in the past. We’ve talked about boulders in the past,” he said.
He added that a critical issue was that the open space connected to the golf course and cemetery functioned as a pathway for wildlife.
Mr. Haslun said the owners do maintain the open space by mowing the grass and he had been unable to find anything showing the area had been forested when the subdivision occurred.
“Not to quibble, but in the declaration this is set aside as parks and playground and open space. There is no restriction that said it had to be maintained in its natural state,” Haslun said.
P&Z chair Margarita Alban disagreed. “That does not mean that trees can be removed from open space. It does not mean that. Or that the lawn can intrude on it.”
“I would not go with the argument of, it’s okay, the lawn can intrude on it and trees can be taken down because there’s no requirement it be kept in a wild state.”
Juan Paredes from the DPW Engineering Division wrote in a memo that is part of the record, “It appears the Open Space (Park and Playground Area) has been deforested over the years; Commission and P&Z staff is advised to require the applicant or the appropriate parties (having ownership of the Open Space) to mitigate the drainage impact resulting from this hydrological soil change (wooded areas to lawn).”
In a letter submitted as part of the record, Kate Dzikiewicz of the Greenwich Tree Conservancy strongly condemned the unauthorized removal of trees from the open space, adding that the 64-inch maple had been estimated to be over 250 years old.
“Situated near Long Island Sound—a vital resource for both livelihoods and recreation—the trees here are part of a critical ecological buffer zone, that has now been transformed into yet more lawn. ”
During public comment, Ms Dzikiewicz referred to the Fellows as “perpetrators,” and said she’d like to see the violation be treated with maximum fines or penalties.
“So we hopefully see homeowners being more educated about the places they purchase in the future,” she said.
“Gardens are not a replacement for trees,” Dzikiewicz continued. “They have different benefits to health and the environment. Removing a tree without permission is not acceptable even if it does provide more sunlight for your house or garden. Ignorance of the law or regulation is not an excuse for breaking it, which appears to be the defense they are making now.”
“I am loathe myself at this point to act on an amendment of the conditions of approval in a removal of the tree because the moment we do that, we have lost the power to further amend…” Ms Alban said.
“I would like to see what Wetlands has done, what the open space restoration plan looks like,” Alban continued. “If we act now, it’s over. I would like the option to potentially provide a different condition on that subdivision.”
Commissioner Arn Welles said, “I’m not sanguine about the removal of the 64-inch circumference tree. From an environmental point of view, trees help with drainage, move carbon, reduce heat island effect and are also animal habitat. From an environmental point of view, this property is worse off from taking that tree own.”
Mr. Welles said he would also like to see the application for house additions and swimming pool as part of a “holistic approach.”
“It’s in the 100 foot review area. Therefore, Wetlands could come back and let us know what they think the best alternative would be. That’s what I’m looking for,” Alban said. “And we will ask for a demarcation. And we are going to ask for ask for the lawn intrusion into the open space to be removed.”
Trevor Fellows said the trees he removed were dangerous and there were still numerous trees remaining in the open space. He said the notion that the area had been “returfed” in the last four years was erroneous.
Ms Alban pointed out that aerial photos in 2016 and 2022 showed that the lawn had further intruded into the open space.
“What we’re saying is if Wetlands thinks this should be grassland, then so be it,” Alban said. “They make the call as to what is appropriate for where they have review, and we will respect it.”
Mr. Fellows said Wetlands comments were inaccurate.
“There are a number of inaccuracies here, and I believe we are being more harshly treated. They had a more draconian view of what this space should be than actually should apply,” Fellows said. “I believe I’m being held to an updated standard, which is not fair.”
Mr. Fellows said he believed that open space was different from parks and playground.
Alban disagreed. She said the general Open Space designation included “parks and playground.”
“Open space is the umbrella,” Alban said. “If you wanted to put in a playground it would be interesting to see if we can stop you, but our goal is not to be punitive and harsh. Our goal is to keep the town the same as the reasons you bought here for.”
Peter Lowe questioned the definition of “grassland.”
“There is a references to manicured lawn. And that’s different from what I think are native grasslands left to grow and not be manicured.”
Teresa Fellows said the tree had been dead.
“The trees blocked all of the sun. There was nothing growing. It was a sad landscape. The wildlife was not in there. Now that the sun comes in, the wetlands are flourishing and everything is green and growing in there again,” she said. “…we have grass growing again because it’s come back to life because it’s not under the shadow of a couple of big old trees any more. The amount of wildlife in our garden is incredible.”
“I have never been referred to as a perpetrator before,” Mr. Fellows said. “Hopefully that is the last time.”
“We know you’re trying to do the right thing,” Alban said.
At the end of the discussion, the application was continued.
2016 Aerial view of 21 Tomac and open space at 0 Tomac.
2022 aerial view. Since 2016, there has been a loss of tree canopy in the open area (0 Tomac), which was valuable habitat within an upland review area, leading to an open space violation.
Also from Sept 17 P&Z commission meeting:
Greenwich Planning & Zoning Unanimously Denies 8-30g at Former Honda Dealer