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Senate to reconsider bill that takes aim at Austin’s tree ordinance

Friday, May 20, 2011 by Kimberly Reeves

After passing a bill with an amendment that few apparently understood on Wednesday, the Texas Senate is set to reconsider a bill today that could have a serious effect on the city’s efforts to regulate water quality in Austin’s extra-territorial jurisdiction.


House Bill 1665 was a simple bill, initially bracketed to Abilene, which dealt with a notification requirement for land use regulations near military installations. On the day it passed, sponsor Rep. Troy Fraser (R-Horseshoe Bay) accepted an amendment on third reading that had not one, but two, targets: expanding the number of bases that could use the bill and possibly limiting a city’s regulatory authority related to clearing or harvesting of trees in a city’s extra-territorial jurisdiction.


The change, which a number of senators recognized was a mistake almost as soon as the vote was cast, certainly hit Austin lobbyist John Hrncir’s radar. Specifically, the bill appeared to limit the authority of cities like Austin to both regulate the clear cutting of trees and, more critically, to require the clearing of brush in order to maintain the city’s water quality standards.


“That’s what we think,” said Hrncir, director of government relations for the city. “We’re still taking a look at it with our legal department.”


The paragraph that was added that has Austin and the Bexar County delegation concerned reads: “Notwithstanding any other law, an ordinance, rule, or plan regulating the planting, clearing, or harvesting of trees or vegetation or other uses of trees or vegetation on a particular tract of land may not be enforced in any portion of the extraterritorial jurisdiction of a municipality that is not located within three miles of the boundary line of a defense base.”


Such a prohibition would appear to seriously hamper the city’s ability to require developers to clear and handle vegetation on a property, a key component in the city’s water quality measures and its protection of critical environmental features.


The bill, however, passed on second and third readings on Wednesday. A number of senators on the floor Thursday said that was the case because Fraser mumbled so much during the amendment explanation on the floor that senators did not realize they were voting on a proposal they clearly would not support.


Sen. Leticia Van de Putte (D-San Antonio) also had her own concerns about the bill and whether new limits might be problematic for one of her bases.


Van de Putte, who chaired the committee that heard the original bill, took the highly unusual path of asking the chamber to reconsider its vote. That required a majority vote and a bipartisan vote, at that.


“Please allow us to reconsider this vote,” Van de Putte asked her colleagues. “If you’re a private property owner, a rancher or a farmer, and you want to do that, you can cut down your trees, but if you are a developer and coming in and doing these kinds of things, you have to abide by the tree ordinance.”


Republican Sens. Dan Patrick (R-Houston) and Robert Nichols (R-Jacksonville) balked at Van de Putte’s concerns, citing the need to protect the rights of private property owners. Nichols said he simply used the same parliamentary tactic that Sen. Jeff Wentworth (R-San Antonio) had used to push through his firearm campus carry bill: Attach the bill as an amendment to a somewhat related bill, which mean it could pass with a majority vote rather than meeting the super-majority standard to bring the bill to the floor.


Nor did Nichols seem inclined to support the authority of San Antonio and Austin to regulate clear-cutting trees. Nichols, in fact, cited the Austin tree ordinance as one of the reasons he was most passionate about limiting interference in the city’s ETJ. The East Texas senator quoted the testimony of one Austin homeowner who told a separate Senate committee about the extensive time, effort and money required to remove a tree on his own Austin-area lot, up to and including verification that the tree had been dead for two years.


“Do we have to get a tree coroner so we can understand that very ordinance?” asked Nichols, clearly scoffing at the extensiveness of Austin’s code.


Other senators threw a flag on Nichols’ parliamentary maneuver, including Van de Putte and Sen. Kirk Watson (D-Austin), who said it was clear that senators had not understood the implications of the amendment when they had voted unanimously to attach it.


“You indicated, and I think several of us know, that you had a bill that dealt with this very issue,” Watson noted in a pointed exchange with Nichols. “So your bill didn’t make it to the floor?”


Patrick, for one, said he was not going to vote to reverse a decision that supported private property rights. Van de Putte argued that the vote was not one against private property rights – she didn’t think this session’s eminent domain bill went far enough – but a chance to argue the merits of the suspect language.


Limited to the terms of “a full discussion” and not a vote on property rights, Van de Putte was able to pull just enough votes to get her majority vote to reconsider HB 1665 on a vote of 16-13. Fraser immediately pulled down the bill and delayed its consideration until Friday, giving him the time to try to round up the votes to put the amendment back on the bill.


One issue Fraser will no doubt face today is whether the added language is germane to the original bill. The original caption on the bill was related to notification, not land use authority, and it’s almost guaranteed that opponents will raise a point of order on whether the additional language is even allowable.

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