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Will Texas lawmakers ax tree ordinances in more than 50 cities?

Dozens of cities and towns in Texas have ordinances aimed at protecting trees. During the special legislative session, Gov. Greg Abbott wants to change that.

A tree is protected by wood planks during construction at a private residence in Austin on June 12, 2017.

Last month, when Dallas resident Cindy Beatty drove to a nearby Home Depot to buy some plants for her home, she noticed something that shocked her: Many of the live oak trees on a commercial property along busy Forest Lane had been shorn of their branches and leaves. 

“The trees were lovely and beautiful. They were oak trees — they were never going to die,” said Beatty, a real estate agent.“I think it’s horrific that they can do that."

Many of those trees were protected by ordinances that aim to “avoid these situations,” according to Phil Erwin, the chief arborist in Dallas. Erwin said he hasn't yet determined whether anyone will be fined over the incident on the property, which a construction company owns; he is still investigating. But an upcoming item in the Texas Legislature could render the point moot.

One of the 20 items Gov. Greg Abbott has asked lawmakers to consider during the upcoming special session, which will begin July 18, is outlawing local tree regulations. More than 50 cities and towns in Texas have ordinances aimed at protecting trees; many of the local rules require property owners to either pay a fee for removing trees or replant trees after they cut some down. Municipalities often design them to prevent the type of branch slashing Beatty said occurred on the property near her Dallas home.

But Abbott — joined by a number of Republican lawmakers and the Texas Public Policy Foundation, a conservative think tank — are calling for the end of those local protections. They argue that the tree ordinances are an unconstitutional violation of private property rights, and Abbott, who grappled with Austin tree regulations as a homeowner, calls the rules a “socialistic” infringement on a landowner’s freedom. 

“I feel like those who own their trees have the right to do with their trees what they want,” said state Sen. Konni Burton, R-Colleyville. 

Burton was one of several lawmakers who filed bills during the regular session that sought to either outlaw or weaken local tree protections. One measure, Senate Bill 744, is awaiting Abbott’s signature and would allow landowners to apply for credit against so-called mitigation fees if they plant a replacement tree either on their property or any other place in the city that local officials agree to. Texas Association of Builders executive director Scott Norman called it a “forward-looking bill.”

But with the item on the agenda for the special session, many of the legislators are again preparing to cut down local regulations, and state Sen. Donna Campbell, R-New Braunfels, has asked Attorney General Ken Paxton to issue an opinion on the constitutionality of local tree ordinances.

“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 wrote in a news release announcing the request. Campbell filed Senate Bill 782 — which would have stripped municipalities of the power to prohibit landowners from removing trees — during the regular session. She said she plans to file a similar bill during the regular session.

But proponents of the local ordinances say that the regulations are constitutional and improve the standard of living in many Texas cities. They warn that an outright ban on local tree regulations would allow real estate developers to remove trees that residents value.

Keith Mars, who enforces Austin’s tree regulations as the city arborist, said trees are an important reason why Austin is a growing destination known for its quality of life. He points to the environmental and economic benefits of trees.

“We know about the quality that this urban canopy provides for our citizens and why so many people are moving here from all over the country,” he said. “There will be a real economic impact to the vitality of Austin and other cities.”

To Robert Henneke, the general counsel at the Texas Public Policy Foundation, though, the tree regulations hamper economic growth in Texas cities.

“The compliance cost of these tree regulation ordinances is harmful because it drives up the cost of housing,” Henneke said. Henneke said the foundation worked with lawmakers who filed bills on the topic during the regular session.

Those efforts will run up against the Texas Municipal League, an organization that advocates for Texas cities and towns in the Legislature. Bennett Sandlin, the group's executive director, said the organization plans to resist bills that nullify local tree regulations. He says municipalities have the constitutional power to protect trees.

“If you take that argument to the extreme — that you can do anything you want on your property in an urban area —then you wouldn’t have zoning,” Sandlin said. “You could have a strip club next to a home or you could have a liquor store next to a school."

Sandlin and others also point to the tree regulation effort as the latest example of state officials encroaching on the authority of Texas cities and towns. John Giedraitis, the executive director of the Texas chapter of International Society of Arboriculture, said local residents are best equipped to determine the appropriate level of tree protection in a city.

“We could just pave everything to make it look like a parking lot,” he said. “The balance between economic development and our environment is always a balance, and that balance is best determined by the local community and the people who live in that environment.”

The tree ordinance item is just one of several special session items that take direct aim at local government functions. Abbott has also asked lawmakers to consider how cities collect property taxes, set budgets and oversee construction projects. The governor’s list — and local officials’ backlash against it — highlights a national division between statehouses and city officials over which level of government should have control over local matters.

Disclosure: The Texas Public Policy Foundation, Texas Association of Builders and Texas Municipal League have been financial supporters of the Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

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