Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

July 14, 2017

The Honorable Donna Campbell, M.D. Opinion No. KP-0155
Chair, Committee on Veteran Affairs
and Border Security Re: Whether under certain circumstances
Texas State Senate municipal tree preservation ordinances may
Post Office Box 12068 violate the Takings Clause of the Texas
Austin, Texas 78711-2068 Constitution (RQ-0164-KP)

Dear Senator Campbell:

You ask whether "under certain circumstances municipal tree preservation ordinances may
violate the Takings Clause of the Texas Constitution."' A number of Texas municipalities have
ordinances regulating the removal of trees within their jurisdiction.2 The ordinances vary widely
with regard to when individual cities regulate tree removal, the sizes and types of trees regulated,
and the conditions imposed· on property owners desiring to remove trees. Many of the ordinances
require a property owner to obtain a permit before removing a protected tree, and they often require
property owners to mitigate any loss of trees by paying a fee, planting trees elsewhere, or some
other action. Briefing submitted with your request references two specific municipal tree
preservation ordinances. Request Letter at 2-5. However, you ask about the constitutionality of
the ordinances generally without regard to a particular ordinance, and we advise accordingly.

The Takings Clause of the Texas Constitution provides that "[n]o person's property shall
be taken, damaged, or destroyed for or applied to public use without adequate compensation being
made, unless by the consent of such person." TEX. CONST. art. I, § 17(a). Although the Texas
takings provision is worded differently than the Takings Clause of the United States Constitution,
it has been described as "comparable.'? See Sheffield Dev. Co. v. City of Glenn Heights, 140

1
Letter from Honorable Donna Campbell, M.D., Chair, Senate Comm. on Veteran Affairs & Border Sec., to
Honorable Ken Paxton, Tex. Att'y Gen. at I (June 8, 2017), https://www.texasattomeygeneral.gov/opinion/requests-
for-opinion-rqs ("Request Letter").
2
See, e.g., Abilene, Tex., Land Dev. Code §§ 4.2.3.1-4.2.3.4; Allen, Tex., Land Dev. Code §§ 7.06-7.06.9;
Austin, Tex., Envtl. Criteria Manual §§ 3.1.0-3.7.1; Bunker Hill Village, Tex., Code §§ 4-181-4-185; Carrollton,
Tex., Code§§ 155.01-.10; Dallas, Tex., Code§§ 51A-10.130-.132; Houston, Tex., Code§§ 33.123, 33.130; League
City, Tex., Code§ 102-12; McKinney, Tex., Code§ 146-136; San Antonio, Tex., Unified Dev. Code§ 35-523.
The Honorable Donna Campbell, M.D. - Page 2 (KP-0155)

S.W.3d 660, 669 (Tex. 2004). Texas courts therefore typically look to federal cases for guidance
on the constitutionality of a taking. Id.

We find no cases analyzing the constitutionality of tree preservation ordinances under the
Takings Clause of the Texas Constitution, so we refer to general Takings Clause jurisprudence for
guidance. Both the United States and Texas Supreme Courts hold certain regulatory action to
constitute per se takings, requiring automatic compensation. See Lucas v. S. C. Coastal Council,
505 U.S. 1003, 1014-15 (1992); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,
426 (1982). If a governmental entity "denies all economically beneficial or productive use ofland"
to a private property owner, aper se taking occurs. 3 Lucas, 505 U.S. at 1015; Sheffield Dev. Co.,
140 S.W.3d at 671. "Determining whether all economically viable use of a property has been
denied entails a relatively simple analysis of whether value remains in the property after the·
governmental action." Mayhew v. Town of Sunnyvale, 964 S.W.2d. 922, 935 (Tex. 1998). Thus,
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.

Outside of per se regulatory takings, a compensable regulatory taking may occur when a
governmental entity imposes restrictions that "unreasonably interfere with landowners' rights to
use and enjoy their property." Ii Determining whether regulatory action unreasonably interferes
with a specific landowner's right to use and enjoy his or her property requires consideration of
multiple factors, which the United States Supreme Court set out in Penn Central Transportation
Co. v. City ofNew York, 438 U.S. 104, 124 (1978). Those factors include: (1) the economic impact
of the regulation; (2) the extent to which the regulation interferes with distinct investment-backed
expectations; and (3) the character of the governmental action. Id.; Sheffield Dev. Co., 140 S.W.3d
at 672.

The first factor, the economic impact of the regulation, "compares the value that has been
taken from the property with the value that remains in the property." Mayhew, 964 S.W.2d at 935-
36. Analysis under this factor may include consideration of both the landowner's lost development
profits as a result of the regulatory action and the investment profits since original acquisition of
the property. Sheffield Dev. Co., 140 S.W.3d at 677. If application of a municipal tree preservation
ordinance to a specific property results in significant economic impact to the owner, that fact will
weigh in favor of finding a taking.

The second factor, the investment-backed expectation of the landowner, considers the
existing and permitted use of the property as a basis for determining the extent of interference with

3
ln addition, where a governmental entity requires an owner to suffer a permanent physical invasion of the
property, the United States Supreme Court has deemed such action a per se taking requiring just compensation.
Loretto, 458 U.S. at 426. Further describing what it meant by "physical invasion," the Court explained "where real
estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial
structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the
Constitution." Id. at 427. The Court distinguished between a physical invasion of a property and a regulation that
restricts the use of the property. Id. Because requiring the preservation of trees does not result in any governmental
invasion or occupation of the property, a court would be unlikely to conclude that a per se physical taking akin to
Loretto resulted.
The Honorable Donna Campbell, M.D. - Page 3 (KP-0155)

the owner's primary expectation concerning the use of the land. Penn Cent., 438 U.S. at 136;
Mayhew, 964 S.W.2d at 936. In analyzing this factor, courts will consider regulations existing at
the time the landowner acquired the property to determine the oWner's reasonable investment-
backed expectations. Id. at 937-38. To the extent that a landowner acquired property prior to the
adoption of a municipal tree preservation ordinance, that fact will weigh in favor of finding a
taking.

The third factor, the character of the governmental action, considers the purpose of the
regulation and how it affects specific landowners in relation to the general public. The United
States Supreme Court explained that a taking "may more readily be found when the interference
with property can be characterized as a physical invasion by government, than when interference
arises from some public program adjusting the benefits and burdens of economic life to promote.
the common good." Penn Cent., 438 U.S. at 124. Under this factor, courts will also consider
whether the regulatory action is generally applicable or exclusively directed at a specific
landowner. See Sheffield Dev. Co., 140 S.W.3d at 678.

Given the Penn Central factors, the enforcement of a tree preservation ordinance to a
specific property could in certain instances result in a taking that requires just compensation.
However, that determination involves "essentially ad hoc, factual inquiries" that will depend on
the specific property and the specific government action in each case. Penn Cent., 438 U.S. at
124. Furthermore, while the Penn Central factors serve as "guiding considerations" in determining
whether a taking occurred, the courts caution that "these factors do not comprise a formulaic test."
Sheffield Dev. Co., 140 S.W.3d at 672. Thus, whether a regulatory taking occurred in any specific
context requires careful examination and weighing of private and public interests and the relevant
circumstances specific to each case. Id.; see· Tex. Att'y Geil. Op. No. GA-0750 (2009) at 2
(explaining that this office does not investigate or resolve factual disputes in the opinion process).
The Honorable Donna Campbell, M.D. - Page 4 (KP-0155)

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.

Very truly yours,

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