Commentary: Austin tree ordinance violates private property rights

Trees are timber — a natural resource that belongs to private property owners in the same way as a backyard garden. It would be absurd to require a government permit to harvest your peppers and potatoes — yet many Texas cities strictly regulate trees on your land.

Overregulation of landowners and their ability to trim and remove tress is the focus of a major property rights fight at the Capitol. And while most recognize the obvious — that private property owners should control what they possess — some are doing their best to muddy the waters.

Part of the absurdity of this issue lies in how trees are treated differently than other natural resources — even different plants. You can pick flowers from your front yard for a table arrangement, though cutting down a tree for firewood violates these tree ordinances.

“Our tree protection ordinances are a vital part of what our community said over decades that it wants. Part of Westlake’s identity is its trees,” declared West Lake Hills Mayor Linda Anthony recently, whose west Austin enclave is home to one of the most restrictive regulatory regimes in the state.

These sorts of collectivist-tinged arguments are, of course, wrong. Philosophically speaking, the wants of a community do not trump the freedoms of an individual. No government — even if its identity is rooted in trees — is bigger than a person’s natural rights as enshrined in the U.S. Constitution.

Practically speaking, municipal tree-cutting ordinances are more than a nuisance; they effectively seize the property impacted by the regulation. If a landowner wishes to remove a tree in order to construct an improvement — such as a backyard swing set — and cannot, that area has been taken by the government without any compensation. This directly contradicts Article I, Section 17 of the Texas Constitution, which provides that “no person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made.”

The concept that private property rights include ownership of the natural resources contained within dates back to the very philosophy of private property ownership itself. John Locke wrote: “As much land as a man, tills, plants, improves, cultivates, and can use the product of, so much is his property.” That this very issue would be in dispute stands in direct contrast to the spirit of Texas as a state that respects private property ownership. If, as the municipalities claim, the public receives benefits from these trees remaining on private land, then the public should pay for this benefit; the property owners should not be drafted into converting their land into a public wilderness preserve.

Yet this practice has grown widespread at the local level.

Around 50 cities total — including metropolitan areas such as Austin, Dallas, Houston, and San Antonio — have adopted burdensome tree-cutting regulations and ordinances potentially affecting millions, according to data from the Texas Chapter of the International Society of Arboriculture. If the trend continues, there may not be many places left soon where a Texans’ right to private property is secure from the thumb of city government.

Fortunately, there are those who recognize the danger of this particular brand of local government tyranny and are pushing back in the Texas Legislature.

Several pieces of legislation have been filed in the House and Senate to reform the practice. Some of the best bills make it explicit that landowners own all the trees and timber on their land while also prohibiting a governmental entity from creating these kinds of regulations in the first place. All of the bills offer property owners some much-needed reprieve.

Property rights are an essential ingredient to our free society. Their preservation is reason why the Texas Legislature should act. Landowners must be protected from local government overreach and Texans’ guarded against violations of our God-given rights to life, liberty and private property.

Said another way: Your land, your tree.

Henneke and Quintero are representatives of the Texas Public Policy Foundation. Henneke is the general counsel and director of the Center for the American Future. Quintero is director of the Center for Local Governance and leads the Think Local Liberty project.

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