In Austin and about 60 other Texas cities, you need a permit before you can 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 preservation rules could lead to “regulatory takings.” That means if landowners can make a case in court, they might be owed compensation for being required to keep a tree on their property. 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 going on.
“There’s lots of ways in which that could seem ominous to towns and cities who are thinking about these kinds of ordinances,” says David Spence, a professor of law, politics and regulation at UT Austin. “But it doesn’t change the constitutional law at issue.”
Like in other “takings” cases, Spence said, 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. 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, Spence says
The reaction from the City of Austin, appears to back that up.
“[The opinion] was what we thought was a reasonable legal opinion,” says Keith Mars, an arborist for the city.
Even though Austin is a favorite target of tree-preservation-rule opponents, Mars says, 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 says.
Mars says he believes the city hasn’t gone to court for a single takings claim in the more than 30 years it’s had preservation ordinances.
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. Gov. Abbott still wants legislation passed this summer to roll back local ordinances.