Many in the Austin lobby and media have been scoffing at Gov. Abbott’s special session call related to preemption of municipal tree preservation ordinances, calling it a trivial issue. However, an opinion from Attorney General Ken Paxton makes it clear that, unless the legislature steps-in, the ordinances are going to result in an avalanche of lawsuits.

In June, State Sen. Donna Campbell (R-New Braunfels) requested an advisory opinion from the attorney general on whether municipal tree preservation ordinances, specifically the ones adopted in Austin and Colleyville, could violate the Texas constitution’s takings clause in some circumstances.

In her letter, Campbell explained that the ordinances essentially impose conservation easements on landowners without compensation. State law allows for such easements, but does not allow for local governments to use eminent domain to acquire them. The ordinances, Campbell argues, are an end-run around state law and the constitution.

The Austin ordinance, for instance, prohibits landowners from cutting down trees on their own property if they have a diameter of 19-inches or greater unless they receive a permit or variance from the city. In some cases, those variances may even require a public hearing. Moreover, the ordinance requires Austinites who are doing construction on their property to file a “tree protection plan” with the city imposing burdensome requirements before they can even use machinery and equipment near existing trees.

Paxton concluded that the ordinances indeed would impose restrictions that would violate the takings clause in some circumstances. However, to make that determination, courts will have to make a case-by-case decision regarding the application of a particular ordinance, in a particular way, to a particular property and whether it unreasonably interferes with the owner’s rights to use and enjoy the property.

Paxton’s opinion was largely analyzed through a political lens by the Austin lobby and media. Although many of them have undoubtedly not read the document, it is being considered simply as Paxton’s endorsement of Abbott’s special session call on the preemption issue.

However, in reality the opinion is a warning that if the legislature fails to do something with Abbott’s call, we are likely to see an avalanche of lawsuits from property owners who are frustrated with their city governments interfering in their use of their own land. The property owners are likely to win those lawsuits, but not after wasting a ton of their own and taxpayers’ money.

The Texas legislature can deal with this problem now by preempting local ordinances that interfere with private property rights and ensuring that any regulations that are allowed don’t violate the US or Texas constitutions.

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Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.


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