Texas Governor Fights Cities’ Protection of Trees as ‘Socialistic’

AUSTIN, Texas (CN) — Calling cities’ protection of trees “socialistic,” Texas Governor Greg Abbott said a top priority for the special legislative session he’s called will be giving property owners the right to cut down trees whether their cities protect them or not.

The proposed tree law was one of 19 priorities Abbott listed last week when he called a special session of the Legislature for July. In promising to “make it count,” Abbott said the tree measure was of personal importance to him, along with anti-abortion measures and property tax legislation.

Abbott asked lawmakers to spend a portion of the 30-day special session — which is estimated to cost taxpayers nearly $1 million — to pass a law to prevent cities from regulating what property owners do with trees on their private lands.

During the regular 140-day session of the Legislature, which ended May 29, state Rep. Donna Campbell, R-New Braunfels, unsuccessfully offered a bill that might have placated Abbott. Senate Bill 782, which never received a committee hearing, would have kept local governments from prohibiting landowners from trimming or removing trees, and limiting the fees municipalities could charge landowners for removing trees.

“City tree ordinances are some of the most egregious examples of property rights violations in our state, affecting millions of property owners in Texas,” Campbell said after filing the bill in February. “It’s time to shift the balance of local control back in favor of local liberty.”

Abbott echoed Campbell in a radio interview last week, lambasting Austin’s heritage tree ordinance, which protects certain species of trees 24 inches and greater in diameter.

“Austin, Texas, owns your trees and that is insanity,” Abbott said. “That is a violation of private property rights in the state of Texas and we want things like that repealed.

“It’s socialistic, is what it is,” Abbott said.

Abbott also revealed a personal reason for fighting tree ordinances. Before becoming governor, he said in the radio interview, he wanted to cut down a pecan tree in the yard of his Austin-area home.

“Austin told me no,” Abbott said. “I could not cut it down, and I had to pay money to the city of Austin to add more trees to my yard, because I wanted to cut down one very common tree that was in a bad location.”

When Abbott applied for a permit to build his home in May 2011, a city arborist determined that two pecan trees on the lot needed to be protected during construction.

A year later, the city approved a request to remove one of the offending pecan trees, because it was dead and had lost two-thirds of its canopy. The city said it could come down, on the condition that Abbott plant other trees on the property.

The Texas Observer reported on Monday that the tree had died because its roots were damaged during construction, despite the conditions of the 2011 permit.

In a letter to Attorney General Ken Paxton on Friday, Campbell asked whether municipal tree preservation ordinances violate the Takings Clause of the Texas Constitution.

Campbell attached to the 1-page letter an 11-page legal brief that concludes: “municipal tree preservation ordinances are in some circumstances unconstitutional, violating the Takings Clause of the Texas Constitution.”

The Takings Clause states that no person’s property “shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made.”

Campbell’s legal brief calls tree preservation ordinances unconstitutional because they “do not substantially advance legitimate state interests in some circumstances,” and because they “constitute a regulatory taking.”

The “character” of the tree ordinances, according to the legal brief, “is strongly analogous to a physical occupation of property, and in some cases the economic impact on the property owner will be too large to go uncompensated, particularly when the investment-backed expectations relating to a parcel are excessively frustrated.”

While tree preservation ordinances may strain the pocketbooks of some property owners, research has shown that Austin’s trees contribute significantly to the city’s economy.

Austin’s trees have a compensatory value of an estimated $16 billion, according to a February 2016 report from the U.S. Forest Service.

The report found that Austin’s trees, which cover more than 30 percent of the city, store approximately 1.9 million tons of carbon, a $242 million value.

Austin’s trees also reduce annual residential energy costs by an estimated $18.9 million per year and reduce storm runoff by approximately 65 million cubic feet per year.

Michael Embesi, an arborist who manages Austin’s Community Tree Preservation Division, told Courthouse News that the city’s trees provide numerous services, including cleaning the air, minimizing flood events, and shade, which is important in a city where temperatures reach 80 degrees or above more than 300 days a year.

Embesi called the protected heritage trees some of the city’s great service-providers.

“If we didn’t have these trees, we would have to have some great infrastructure to perform the services that these trees are providing,” Embesi said.

He called Austin’s tree ordinance “very fair and balanced,” as it allows 95 percent of the city’s trees to be removed under certain conditions. Only 5 percent of the city’s 34 million trees are protected.

Embesi said many of the protected trees are special to property owners, who value them for their beauty, the shade and privacy they provide, and the value they add to the property.

“One of the really great things of living in Austin and serving this community is that we don’t get a lot of complaints,” Embesi said. “There is a very healthy respect because there is an innate understanding that the trees are providing multiple services and are a very important part of our day-to-day lives.”

The Austin city attorney did not immediately Tuesday respond to a request for comment on the constitutionality of the tree ordinance.

The special session begins July 18.

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