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Tuesday, July 18, 2017 by Mose Buchele

City of Austin welcomes Texas AG opinion on local tree rules

In Austin, and in about 60 other Texas cities, you need to get a permit before you cut down some large or historic trees. Opponents of those tree preservation rules – including Gov. Greg Abbott – call them a violation of property rights. Now, Attorney General Ken Paxton has weighed in, and those opponents may not be happy with his opinion.

The opinion says tree preservation rules could lead to so-called “regulatory takings.” That means if a landowner can make their case in court, they might be owed compensation for being required to keep a tree on their lot. That could seem like a win for people who want the rules thrown out. But the opinion stops short of saying there’s anything unconstitutional about the rules.

“There’s lots of ways that could seem ominous to towns and cities who are thinking about these kinds of ordinances,” said David Spence, a professor of law, politics and regulation at the University of Texas. “But it doesn’t change the constitutional law at issue.”

Spence said, like in other “takings” cases, a property owner would have to go to court to show how keeping trees on their land hurt them financially and hindered the use of their property. Then a judge would weigh that against the city’s reason for preserving trees, before deciding whether compensation was warranted.

“So if the city attorney understands those rules to begin with, it’s not going to have a huge effect” on city policy, said Spence.

The reaction from the city of Austin appears to back that up.

“(The opinion) was what we thought was a reasonable legal opinion,” said Keith Mars, Austin’s city arborist.

Even though Austin is a favorite target of tree preservation rule opponents, Mars said City Council members have been careful about the way they write their ordinances.

“They had the foresight to include that trees need to be protected unless they prevent a reasonable use or reasonable access to the property,” he said.

In the over 30 years Austin has had tree preservation ordinances, Mars doesn’t believe the city’s gone to court for a single takings claim.

Of course, even if the attorney general’s opinion reaffirms the constitutionality of tree preservation rules, that doesn’t mean those rules are out of the woods. Abbott still wants legislation passed this summer to roll back local tree ordinances.

This story was produced as part of the Austin Monitor’s reporting partnership with KUT. Photo by charlene mcbride made available through a Creative Commons license.

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Key Players & Topics In This Article

City of Austin Heritage Tree Ordinance: The city ordinance that prohibits the unlicensed destruction of trees greater than 19 inches in diameter.

Texas Legislature: The state’s legislative governing body composed of the House and Senate.

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