Rewriting the Tree Ordinance

 Councilwoman Jonrowe is considering rewriting part of the city's Unified Development Code that deals with tree preservation based on the experience with the current code. This is a hot button issue that will bring out the tree lovers and the property rights activists.

This issue was considered in the last state legislative session with proposals to legislatively deny cities the ability to regulate trees or their removal on private property.

The bill that did pass into law, HR7 placed restrictions on a city's ability to regulate trees smaller that 10 inches in diameter on private property.

That bill does not impact Georgetown's current ordinance that only applies to trees greater than 12 inches in diameter. If however, more stringent rules are enacted, court actions can be anticipated if all economic or productive use of the land is curtailed.

Attorney General Ken Paxton issued the following opinion:

SUMMARY

 If a municipal tree preservation ordinance operates to deny a property owner all economically beneficial or productive use of land, the ordinance will result in a taking that requires just compensation under article I, section 17 of the Texas Constitution. 

Furthermore, a court is likely to find a regulatory taking if a municipal tree preservation ordinance, as applied to a specific property, imposes restrictions that unreasonably interfere with landowners' rights to use and enjoy their property. In analyzing whether the interference is unreasonable, the court will consider all relevant circumstances, including: (1) the economic impact of the ordinance; (2) the extent to which the ordinance interferes with distinct investment-backed expectations; and (3) the character of the governmental action. 

KEN PAXTON Attorney General of Texas 
JEFFREY C. MATEER First Assistant Attorney General 
BRANTLEY STARR Deputy First Assistant Attorney General 
VIRGINIA K. HOELSCHER Chair, Opinion Committee