Town funds spent in court to defend Tree Warden John Howe's decision to remove and prune trees along West Road should drain from a fund of $25,000 allocated for town tree replanting, First Selectman Jeb Walker said.

Walker's opinion supports an informal recommendation made to him on Wednesday evening by Town Council members.

"If [the residents] want to persue this, I think there has to be some down-side risks here and ... they risk not having [the trees] replanted by the town," said Town Council member Paul Foley at a Town Council meeting Wednesday night.

He added, "We've got limited funds here and if they are going to make us now go out and spend additional funds defending ourselves ... any money we have to spend on this should come out of the tree fund ... . They are going to get fewer trees. If they want to keep suing, there will be no trees."

The $25,000 fund is apportioned for tree replanting across New Canaan, not just tree replacement efforts on West Road.

"In my view, it's a frivolous situation and we're going to be spending money on that frivolous situation," Walker said. He added, "I'm going to follow the wishes of the Town Council."

Seventeen West Road residents filed an appeal to the Connecticut Superior Court regarding a Nov. 6 decision by Howe to remove 10 trees and prune another dozen that boarder their private properties.

The residents cite diminished property values, impaired roadside beauty and abuse of natural resources in the appeal as grounds for nullification of what they characterize as "an arbitrary and capricious decision that amounted to an abuse of discretion and power in light of the [D]efendants' selective enforcement of ... power."

This "abuse ... of power," appellant and West Road resident Tom Barket said, pertains to what he calls a "haphazard, unclear and unscientific method" for determining which New Canaan trees need removal and pruning.

While Tree Committee member Keith Simpson agrees that the tree assessment process is "imperfect," he said that the West Road trees in question are in immediate need of removal and it is inconsequential if other trees elsewhere in town are in a worsened condition.

Four telephone complaints from New Canaan residents, Howe said, originally alerted him to evaluate the West Road trees. Upon investigation, he said, he found that some of them were in a state of decay.

Howe consulted with two licensed arborists before deciding to remove 10 decaying trees and prune another dozen by as much as one-third because, he said, the trees are "a hazard to public safety."

The town is liable, Walker said, if a branch or trunk from one of the trees in question were to fall and injure a person or property. Just last week in Darien, a couple was awarded $1.3 million from the town after a tree fell on their car.

The 22 trees in question stand along a quarter-mile stretch of West Road.

Many other roadside trees, the residents say, pose a more immediate public hazard than the West Road trees.

"They just felt that there were other trees in town [that have] a higher priority for removal ... but I don't think that's really the point," Tree Committee member Keith Simpson said. "The point is whether those particular trees are in immediate needed of [removal]." The added, "That seemed to be their main beef, that there are other trees that are a little more urgent, and I don't think that's incorrect. This is an imperfect process."

Some residents, Howe said, accused him of incompetence and called for his dismissal from the Tree Warden post.

The scheduled tree removal and pruning is on hold until a decision is reached by the Connecticut Superior Court.

"At a time when the town is cutting services in the face of a tight fiscal situation, this is going to tie up Town Hall staff and resources," Walker said. "We've got to pay for it from somewhere."

Howe, Walker said, "is doing the best job he can in this situation" and has not extended beyond his legal bounds.

"I think the residents were treated more than fairly by the town and I think Public Works and my office went out of their way to listen to the residents ... . What the Town Council did was slap me on the wrist and say, `Don't spend our money on this,' and I have to say that I strongly agree with them," Walker said.

The Superior Court appeal date is set for Dec. 8 in Stamford.