This commentary was originally featured in the Austin American-Statesman on July 24, 2017.
During the current special session, the Texas Legislature will address the seemingly simple question: Who owns the tree in your backyard?
Nearly 50 municipalities in Texas have ordinances preventing landowners from removing trees from their private property without receiving the city’s permission — and they often require property owners to pay a fee to mitigate the loss of trees. Gov. Greg Abbott made restricting these local ordinances a priority.
But such tree ordinances already have questionable legality. The Texas Constitution has a provision — the Takings Clause, which echoes the Fifth Amendment to the U.S. Constitution — that states when government takes private property for a public use, it must pay just compensation to the landowner.
Municipalities with these tree ordinances have trampled the constitutional commitment to private property rights. In their efforts to regulate trees on private property, these cities have prevented Texans from making full use of their private land by requiring them to keep trees on their property against their will. This establishes a government taking for a public use, though these cities have not provided their citizens with just compensation, as constitutionally required.
Attorney General Ken Paxton recently responded to a request for an opinion from Sen. Donna Campbell on whether the tree ordinances violate the constitutional rights of Texans by requiring them to maintain unwanted trees on their land.
In response to Campbell’s request, the Texas Municipal League — the lobbying entity for cities — enlisted a liberal academic opponent of property rights, Vermont Law School Professor John Echeverria, to send a letter to the Attorney General arguing that such tree ordinances do not impinge on property rights and therefore require no compensation to landowners. Paxton rejected the league’s arguments and reasoned that in some circumstances, uncompensated actions under the tree ordinances violate the Texas Constitution.
Tree ordinances are a way to get conservation easements free, regardless of the wishes of the property owner. Municipalities argue the societal benefit of trees to justify the tree ordinances, but this undermines their argument as to their legality. If the public benefits from the presence of unwanted trees on someone’s property, then the public should pay for them through taxes imposed on everyone rather than having the entire burden concentrated on an individual property owner with trees that limit the use of the property, but cannot be removed.
Under the legal test for evaluating Takings Clause, a compensable taking occurs if a regulation overly burdens a property owner when its economic impact, interference with investment-backed expectations, and the intrusive character of the government action are evaluated.
By preventing development and renovation, these ordinances economically affect Texas property owners. By retroactively placing conditions on property owners’ use of their property after purchase, these ordinances interfere with their investment-backed expectations. And by taking what are in effect conservation easements on another’s property — and requiring property owners to allow unwanted trees on their land — the ordinances are closer in character to physical occupations of property than to mere restrictions on use, and therefore require compensation.
These ordinances are eminent domain in all but name and allow municipalities to take the property of Texans without their consent and without compensation. Trees are a natural resource and belong to the property owner, just like groundwater or minerals.
If the Texas Legislature does not remedy the problem with municipal tree ordinances, the courts will have to enforce the constitutional rights of property owners to prevent their private property from being dragooned into public use without just compensation.