Can a Texas city's tree removal ordinance be an unconstitutional taking of my property?

Plain-English summary

A state senator asked the AG whether municipal tree preservation ordinances can, under some circumstances, violate the Takings Clause of the Texas Constitution. Many Texas cities regulate the removal of trees: the ordinances differ on which trees are protected by size and type, and they often make a property owner get a permit before removing a protected tree and mitigate the loss by paying a fee, planting replacement trees, or taking some other step. The senator asked about these ordinances in general, not about any single city's rule, so the AG answered at that general level.

The AG laid out the takings framework rather than declaring any ordinance valid or invalid. Article I, section 17 of the Texas Constitution bars taking, damaging, or destroying a person's property for public use without adequate compensation. Texas courts treat the state provision as comparable to the federal Takings Clause and look to federal cases for guidance. There were no cases analyzing tree preservation ordinances under the Texas Takings Clause, so the AG drew on general takings law. If an ordinance denies an owner all economically beneficial or productive use of the land, it is a per se taking that automatically requires compensation. A permanent physical invasion is another category of per se taking, but the AG said requiring trees to be preserved is a use restriction, not a physical invasion, so that category would not apply.

Outside the per se categories, an ordinance can still be a compensable regulatory taking if it unreasonably interferes with an owner's right to use and enjoy the property. Courts weigh the three factors from the U.S. Supreme Court's Penn Central decision: the economic impact of the regulation, the extent to which it interferes with distinct investment-backed expectations (including whether the owner acquired the property before the ordinance was adopted), and the character of the government action (including whether it applies generally or targets one owner). The AG stressed that applying these factors is an ad hoc, fact-specific inquiry that turns on the particular property and the particular government action, that the factors are guiding considerations rather than a formula, and that the opinion process does not investigate or resolve such factual disputes. So whether a given tree ordinance is a taking depends on the facts of each case.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The requesting senator (as the opinion described it): The opinion answered at the general level the senator posed, setting out the takings framework: a tree ordinance that denies all economically beneficial or productive use of land is a per se taking requiring compensation, and otherwise a court would apply the Penn Central factors. It did not pass on the constitutionality of any specific ordinance, calling that a fact-specific inquiry the opinion process does not resolve.

Cities with tree preservation ordinances (as the opinion described them): The opinion treated these ordinances as use restrictions, not physical invasions, and explained that whether one effects a regulatory taking as applied depends on the economic impact, investment-backed expectations, and character of the action, weighed case by case.

Property owners subject to tree ordinances (as the opinion described them): The opinion described the lines a court would use, including that acquiring property before an ordinance was adopted weighs toward finding a taking, and that significant economic impact on the owner also weighs that way, while emphasizing the determination is ad hoc and fact-bound.

Common questions

Is a city tree removal ordinance automatically an unconstitutional taking?
No. Under this opinion, an ordinance is a per se taking only if it denies the owner all economically beneficial or productive use of the land. Otherwise a court weighs the Penn Central factors to decide whether it is a compensable regulatory taking.

What is a per se taking in this context?
The opinion described two per se categories: a regulation that denies all economically beneficial or productive use of the land, and a permanent physical invasion. It said tree preservation is a use restriction, not a physical invasion, so the physical-invasion category would not apply.

What are the Penn Central factors?
The opinion listed three: the economic impact of the regulation, the extent to which it interferes with distinct investment-backed expectations, and the character of the government action. Courts weigh them together, and the opinion said they are guiding considerations, not a formulaic test.

Does it matter when I bought my property?
The opinion said yes, as part of the investment-backed expectations factor. Acquiring the property before a tree preservation ordinance was adopted weighs in favor of finding a taking.

Did the AG say whether a specific ordinance is a taking?
No. The opinion said whether a regulatory taking occurred is an ad hoc, factual inquiry specific to each property and government action, and that the opinion process does not investigate or resolve factual disputes.

Background and statutory framework

The Takings Clause of the Texas Constitution provides that no person's property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation, unless by the consent of the person (Tex. Const. art. I, § 17(a)). The Texas provision, though worded differently from the federal Takings Clause, has been described as comparable, and Texas courts look to federal cases for guidance (Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex. 2004)).

Finding no case analyzing tree preservation ordinances under the Texas Takings Clause, the AG turned to general takings jurisprudence. Both the U.S. and Texas Supreme Courts treat certain regulatory action as per se takings requiring automatic compensation (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)). A per se taking occurs if a governmental entity denies all economically beneficial or productive use of land (Lucas, 505 U.S. at 1015; Sheffield Dev. Co., 140 S.W.3d at 671), an inquiry that asks whether value remains in the property after the government action (Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935 (Tex. 1998)). A permanent physical invasion is also a per se taking (Loretto, 458 U.S. at 426-27), but because preserving trees does not result in any governmental invasion or occupation, the AG concluded a court would be unlikely to find a Loretto-type physical taking.

Outside the per se categories, a compensable regulatory taking may occur when government imposes restrictions that unreasonably interfere with landowners' rights to use and enjoy their property, judged by the factors set out in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978): the economic impact of the regulation, the extent of interference with distinct investment-backed expectations, and the character of the governmental action (Sheffield Dev. Co., 140 S.W.3d at 672, 677-78; Mayhew, 964 S.W.2d at 935-38). The AG concluded that enforcing a tree preservation ordinance against a specific property could in certain instances be a taking requiring just compensation, but that determination involves ad hoc, factual inquiries depending on the specific property and government action; the Penn Central factors are guiding considerations rather than a formulaic test, and the opinion process does not investigate or resolve factual disputes (Penn Cent., 438 U.S. at 124; Sheffield Dev. Co., 140 S.W.3d at 672; Tex. Att'y Gen. Op. No. GA-0750 (2009) at 2).

Citations

Statutes:

• Tex. Const. art. I, § 17(a)

Cases:

• Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660 (Tex. 2004)
• Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992)
• Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)
• Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998)
• Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978)
• Tex. Att'y Gen. Op. No. GA-0750 (2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0155
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0155.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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." [1] 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 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 of land" to a private property owner, a per 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." Id. 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 of New 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 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 Gen. Op. No. GA-0750 (2009) at 2 (explaining that this office does not investigate or resolve factual disputes in the opinion process).

                                  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

[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 1 (June 8, 2017), https://www.texasattorneygeneral.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.

[3] In 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.