PaperCityMag.com - Luciano Guibbilei

Garden by Luciano Gibbilei. Photo courtesy of PaperCity Magazine.

Who can cut down the tree in your backyard? Recently, this question has caused much controversy. One might intuitively reason that any vegetation located on a piece of land is the property of the landowner, and therefore, is subject to change or removal at their discretion. However, certain laws suggest otherwise. Nearly 50 municipalities in Texas have ordinances prohibiting land owners from removing trees on their private property without the city’s permission. Even when the requests are approved, landowners are often assessed a fee which the cities justify on the grounds that the trees are a “public good,” and so their removal comes at a cost.

Municipalities argue that these ordinances are a means of limiting tree removal, and claim that the trees confer a public benefit. They suggest that since municipalities regulate numerous other aspects of private property, such as through zoning ordinances and health and safety codes, protecting trees is a logical extension of the same.  It is unclear at this point whether the legislature or the courts will see fit to provide guidance on the tricky question of how much regulation is too much.

A compelling case could be made that these ordinances impose an uncompensated “regulatory taking” on landowners. A regulatory taking occurs when government regulations substantially interfere with or disturb a property owner’s use and enjoyment of their property rights.  If proven, the government is then required to provide just compensation. Often, these types of regulations reduce a property’s value or potential uses. However, not all types of government regulation of property rise to the level of a taking.