Local tree ordinances in Republican cross hairs

Feb 11, 2017
Ralph Barrera
These heritage trees at a South Austin construction site are protected by boards and some fencing.

In another clash involving local and state power, a state senator who represents parts of Travis and Hays counties wants to cut down tree protection rules like the one long in place in Austin.

The proposal by state Sen. Donna Campbell, R-New Braunfels, is the latest in a legislative session that has seen Republican lawmakers clash with local officials on issues ranging from immigrant detention policy to plastic bag bans.

Senate Bill 782 says a landowner owns the trees on his or her property, and it would limit the mitigation fee that a local government can impose on a landowner for removing trees greater than 10 inches in girth.

The measure “limits the power of government by ensuring Texans have solid ground to stand on when it comes to managing and developing their own land,” Campbell said in a statement.

“City tree ordinances are some of the most egregious examples of property rights violations in our state, affecting millions of property owners in Texas,” said Campbell, a member of the tea party wing of the Republican Party. “It’s time to shift the balance of local control back in favor of local liberty.”

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Roughly 50 Texas cities have tree protection ordinances, including Round Rock, Pflugerville, Sunset Valley, Lockhart and West Lake Hills, according to the Texas Chapter of the International Society of Arboriculture.

Last fall, in preparation for the legislative session, the Austin City Council directed its lobbyists to “preserve property value for Austin taxpayers by protecting the city’s authority to promote good land use,” including its tree protection regulations.

Austin “did a lot of outreach, including to people from the development community” before adopting its heritage tree ordinance, City Council Member Kathie Tovo said. Trees help prevent flooding, she said, by reducing stormwater runoff, and improve air quality, as well as increase property values.

“It’s within the city’s purview to regulate in this area to ensure the health and safety of our citizens,” she said.

Michael Embesi, Austin’s community tree preservation division manager, said the city has long “worked closely with developers and neighborhoods as our city has substantially evolved, incorporating the value of trees in our community.”

Austin’s ordinance

For more than 30 years, Austin has required owners of public and private land to get the city’s permission to fell trees with trunk diameters of 19 inches or more — regardless of variety. In exchange, owners must plant new trees or pay into a tree-planting fund.

In 2010, Austin added a stricter rule. It said owners couldn’t cut down so-called heritage trees — those of certain species with trunk diameters of 24 inches or greater — unless they prove that the tree is diseased or a safety risk or that keeping it would prevent a reasonable use of land.

Last year a team of U.S. Forest Service and Texas A&M Forest Service researchers pegged the “compensatory value” of the roughly 33.8 million trees found in Austin at $16 billion, or roughly $480 per tree.

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The researchers determined the compensatory value of a tree based on trunk size, species, condition and location. It includes the replacement cost of a similar tree and is an estimate of the money the tree’s owner should be compensated for a tree’s loss.

Trees cover nearly a third of the city’s land; about 90 percent of Austin’s trees are native to Texas, according to the researchers.

Embesi said the city will “assess the potential impact (of the bill) to Austin and the services we provide citizens.”

“We’ll be monitoring the bill closely,” he said.

Over the three-year span from the beginning of 2014 through the end of 2016, Austin preserved about 43,000 trees, approved 23,000 trees for removal, and required 24,000 trees be planted to replace trees permitted for removal.

“The Legislature always seems to think they know it all about how municipalities should regulate their own environment and culture,” said Pflugerville Mayor Victor Gonzales. “Actually, they’re the least knowledgeable about how communities grow, develop and survive.”

Gonzales said his city’s tree ordinance is meant to “preserve the horticultural landscape.”

Tree bills

Campbell’s proposal echoes Senate Bill 744 filed by state Sen. Lois Kolkhorst, R-Brenham. Another proposal, House Bill 1572 by state Rep. Paul Workman, R-Austin, would bar a city from enacting or enforcing an ordinance that prevents a property owner from removing a tree that the owner believes poses a fire risk.

This is at least the third legislative session in a row that tree ordinances have come under attack. Homebuilders have supported the legislative measures, arguing that tree protection rules hinder development and add to the cost of construction.

In January 2015, Greg Abbott, newly elected as governor, told a meeting of the conservative Texas Public Policy Foundation, “Few things are more important in Texas than private property rights, yet some cities are telling citizens that you don’t own some of the things of your own property that you have bought and purchased and owned for a long time — things like trees.”

In the last legislative session, an odd-bedfellows coalition — including everyone from the mayor pro tem of Fort Stockton, who identifies himself as a tea partyer, to a former Republican state representative and mayor from Wichita Falls who runs an oil and gas exploration business to environmental and labor activists — came together to defeat measures on tree ordinances and plastic bags. But this time around, such a coalition hasn’t yet materialized.

There will be lots of fights over local control bills in committees, said Robin Schneider, executive director of Texas Campaign for the Environment, which helped organize the coalition last session. But broadly speaking, “it’s not the high-profile issue it was off the bat” last time around, she said.