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AYER — The Sept. 27 public hearing over the fate of four shade trees was overshadowed by another public hearing later in the evening regarding a proposed sex offender residency bylaw for Ayer. But on that night, the trees were given their walking papers when the Ayer Board of Selectmen voted (3-1 with one abstention) to authorize the chopping down of four shade trees determined to be within a public way alongside Groton Harvard Road near the entrance of the proposed eight home sub-development called Emily’s Way.

Ayer Tree Warden Mark Dixon said he talked to David E. Ross Associates who surveyed the property bounds and marked the boarder between the public way and the homes in the area of 38-40 Groton Harvard Road. Dixon said abutter Dennis McGillicuddy at 40 Groton Harvard Road originally negotiated with developer MEMS Realty Trust to keep the wood from 8-foot sections of the trees when they were felled and that MEMS would purchase and plant a row of arbor vitae trees along his lot line.

Dixon said the trees would obstruct the view for motorists exiting and entering the complex, as they do already for James and Sharon Lucchesi at 38 Groton Harvard Road. Dixon also said the the upper branches of the trees were growing too close to the power lines along Groton Harvard Road, which he suggested could pose a risk of a disruption in service to the Nashoba Valley Medical Center further outbound on Groton Road.

George Hynes, who lives across the street from the trees at 35 Groton Harvard Road, said he was led to believe the tree hearing should have occurred before the Planning Board approved the Emily’s Way subdivision. Hynes also suggested that “as a general rule of thumb,” the distance four feet from any curb is considered to be public, and not private, property. Hynes also said that MEMS Realty Trust “over emphasized” the need for the trees to come down when talking with McGillicuddy.

McGillicuddy was present and said he did meet with the developers. He also restated the 4-foot rule. He said while he originally was comfortable with the trees’ removal, he now felt, “if these trees don’t have to be cut down, I’d prefer not to have them cut down. If it bars Emily’s Way from being developed, so be it.”

Matthew Field is a principal of MEMS Realty Trust which purchased the Lucchesi property in August for $280,000 said he’d long been “under the impression that these four trees were acceptable to come down” since they took root in the right of way. Field said the trees do indeed obstruct a clear view of traffic along Groton Harvard Road.

“We agreed with Mr. McGillicuddy to plan arbor vitae on his property in return for ‘no issues.’ We were approved by the Planning Board. That’s all we have to say.”

“There is no rule of thumb for location of a right of way,” said Ayer DPW Superintendent Dan Nason. “It can vary greatly.” Nason said the swing out from the edge of the roadway can go out as far as 40 feet or more. Also Nason noted that due to repeat paving, the edge of the pavement isn’t an accurate starting point for measuring a right of way.

Nason said that there were oak stakes installed by Ross Associates there to show the edge of public way. “I think there’s 5-6 stakes,” said Nason. “You can clearly see where the line would be.”

Hynes wondered if there should be any concern with Ross Associates demarkation of the right of way since “at one time I was going to hire Ross Associates to do work for me. They told me they couldn’t do that because they’d been retained by the developer. I’m not saying they did anything wrong but is there any kind of conflict?”

“Dixon is elected by the town,” said selectman Chairman Gary Luca. “I don’t see a conflict.”

Selectman Pauline Conley motioned for the approval of the removal of the four trees. The vote was 3-1, with selectman Carolyn McCreary voting ‘no and selectman Frank Maxant abstaining from the vote.