Legislature puts cities' tree rules on chopping block

Jessica Priest By Jessica Priest

July 23, 2017 at 9:42 p.m.
Updated July 24, 2017 at 6 a.m.

A tree stands in the road of North Terrell Street in Cuero.

A tree stands in the road of North Terrell Street in Cuero.   Nicolas Galindo for The Victoria Advocate

To some, trees are beautiful. To others, they are a barrier.

When Gov. Greg Abbott learned he needed the city of Austin's permission before cutting down a pecan tree to make way for construction on his property, he put the power of his office behind him.

Preventing cities from regulating what private property owners do with their trees is No. 8 on his list of 20 items to tackle during a special legislative session, ahead of prohibiting taxpayer funding for abortion providers and cracking down on mail-in ballot fraud. That session started Tuesday.

Crossroads cities have no similar tree ordinances. They require only that trees be trimmed so they don't obstruct emergency vehicles from navigating the streets or touch power lines.

Cuero is the most ambitious when it comes to preserving its trees, some of which are a century old and in the middle of streets.

Last year, the city allocated $15,000 to a tree board, which maintains trees on city property and hosts workshops throughout the year.

Although he appreciates trees, Anthony Netardus, the chairman of the tree board, said he sees Abbott's point of view, too.

He said trees, especially those in the center of one's yard, belong to the property owner and the government ought not interfere.

Goliad County Judge Pat Calhoun agreed even though he grew up hearing stories about the hanging trees from his grandfather.

"Obviously, historic things, I would love to see them protected, but not at the expense of a private property owner," he said.

But Michael Embesi, the city of Austin's community tree preservation division manager, said regulations like this exist in dozens of other Texas cities, the closest to Victoria being Ingleside and Lockhart.

He said in fact, Austin's regulations have existed in some form since 1983 with little fuss.

The regulations in 1983 prohibited the removal of trees with a diameter of 19 inches or more. In 2010, Embesi said, the council passed another regulation about trees. This one prohibited the removal of Texas ash, bald cypress, American elm, cedar, elm, Texas madrone, bigtooth maple, pecan, Arizona walnut, Eastern black walnut and all oak trees with a diameter of 24 inches or more.

He said these regulations apply to about 2 percent of the trees in Austin, and it's rare for someone to appeal them. The regulations were passed not necessarily to preserve history but to preserve the trees' benefits.

In addition to being aesthetically pleasing, trees of this size are invaluable for their ability to filter pollutants from the air, provide habitat for wildlife and reduce the city's energy load.

"They also shade our infrastructure, such as sidewalks and roads, which lengthens their lifespan," Embesi said.

He said these benefits are crucial because Austin is booming.

In December 2016, the Austin Business Journal reported 81,453 people moved to Austin during the past five years.

"We regulate a plethora of subject matters when a property is being redeveloped, and trees are just one aspect of that, and again, we have a great record of balancing the need of redeveloping property and preserving trees," Embesi said.

Some Victoria residents who fight with the utility company whenever it trims trees back might get behind regulations like the ones in Austin, said John Quitta.

Quitta, who has worked as a Realtor in the Victoria area for 38 years, thinks trees add value to a home.

"I think there should be a way that we try to keep trees and maybe there could be some variances every so often," he said. "They are beautiful, the way they hang over the streets. ... They make a difference."

Abbott adding trees to the special session's agenda is part of a larger trend of Republican-led state government trying to usurp Democrat-led cities' regulations, said Sherry Greenberg, a clinical professor and fellow of the Max Sherman Chair in State and Local Government at UT's Lyndon B. Johnson School of Public Affairs.

Some examples of this are the Legislature's efforts to strike down cities' bans on fracking and plastic bags.

"You can find some interesting alliances that come from these," she said.

Ranchers in West Texas, for example, were in favor of plastic bag bans because their livestock were eating the bags and getting sick. In that instance, the ranchers argued their private property rights were being infringed upon when plastic bags were not banned, Greenberg said.

State Sen. Bob Hall, R-Edgewood, and State Rep. Paul Workman, R-Austin, have offered to author the legislation Abbott is requesting.

While neither responded to calls for comment, there is expected to be a lot of it during the special session.

James Quintero, the director of the Center for Local Governance at the Texas Public Policy Foundation, often finds his testimony at the capitol conflicts with that of the Texas Municipal League.

In a written statement, the TML said, "74 percent of Texans live in our 1,215 towns and cities, and the decisions they have made at the local level have put Texas cities at the top of the nation in success. Stifling their voices through an all-powerful, overreaching state government is a recipe for disaster."

To Quintero, the state government's main purpose is to protect life, liberty and property, and that's what Abbott is doing.

He quoted Article 1, Section 17 of the Texas Constitution, which states, "No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made ..."

Texas Attorney General Ken Paxton, in an opinion issued July 14, more or less agreed tree preservations violate the Texas Constitution.

"This has to do with the Californiazation of Texas, and conservatives are finally mounting an aggressive effort to combat that," Quintero said.

The special sessions are 30 days long. The only thing the Legislature must do is pass sunset legislation.

Greenberg supposed Abbott could use his power as governor to call another special session, but would he? Some items on his lengthy agenda for the special session were debated during the regular session.

"If they couldn't make progress then, what are the chances they'll come to an agreement in a special session?" she asked.


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