Tree Preservation Ordinances Part II: H.B. 1377 and Pay or Waive

House Bill 1377 (Kolkhorst, R – Brenham) is a bill aimed at limiting how cities enforce tree preservation ordinances. It states that a “landowner owns all trees and timber located on the landowner’s land as real property until cut or otherwise removed from the land, unless otherwise provided by a contract, bill of sale, deed, mortgage, deed of trust, or other legally binding document.”

At first glance, the tree ownership language seems innocuous: all landowners do in fact own their trees. From a legal perspective, though, the language of the bill would radically change common law relating to trees and property value. When H.B. 1377 was heard in the House Committee on March 27, the author explained it as simply codifying the current common (i.e., court cases) law in Texas, but it actually does the opposite.

First, some legal background: for constitutional “regulatory takings” purposes (requiring a city to compensate a landowner, like it does when it uses eminent domain, if a regulation makes property valueless), trees are a factor that can be used to determine the value of land, but value is decided based on the total market value of the land. A tree preservation ordinance that prohibits a person from cutting down one or even several trees will not usually rise to the level of a regulatory taking that requires compensation, because it doesn’t render property valueless or unreasonably interfere with the use of property.

H.B. 1377 would radically change that. The “ownership provision” would make each individual tree subject to a regulatory takings analysis. If the bill passed, it would mean that a prohibition on cutting down a tree works a taking on each tree on the property. This means that a city would either have to pay an owner for the value of each tree affected by the ordinance, or else waive its regulation. Cities can’t afford to make those cash payments, of course, and will thus be forced to waive their tree regulations.

The Georgia Supreme Court considered a similar argument from the Greater Atlanta Homebuilders several years ago. The homebuilders lost, and the court sensibly explained why:

[T]he Tree Ordinance does not destroy [a developer’s] ability to develop its land; it only regulates the way in which new and existing trees must be managed during the development process. [Developers] have failed to show that the Tree Ordinance destroys its ability to develop land…While the Tree Ordinance may impose some additional costs and thus diminish the ultimate value of [developers’] land, “[m]any regulations restrict the use of property, diminish its value or cut off certain property rights, but no compensation for the property owner is required.”

League staff and a number of city officials testified in opposition to H.B. 1377 at the committee hearing. City officials who wish to continue to enforce their tree preservation ordinances should contact their legislators to express their opposition to H.B. 1377, especially those who are represented by members of the House Committee on Urban Affairs:

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