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Arkansas Senate Bill 637

By Buck Abbey, ASLA, Green Laws Organization, New Orleans





Arkansas Senate Bill 637 is an act to prohibit cities and counties from denying private property owners the right to cut down or trim trees, bushes or shrubs. The bill asserts that "the right to own, use, and enjoy private property is protected by the Arkansas Constitution and the U.S. Constitution; is a hallmark of Arkansas and American society, deeply embedded in the fabric of both urban and rural societies; and should be protected from undue interference by state and local government." A PDF of Senate Bill 637 is available at http://tinyurl.com/kjqtqxu


"Dillon's Rule" rings down through the years highlighting the relationship between state and municipal law.

Judge John Forrest Dillon (1831-1914) served on federal and Iowa state courts. In 1872, he wrote a systematic study (Municipal Corporations) on the power of states over municipal governments. Thus, Dillon's Rule expresses the authority of state government over local government. It is not within that rule to require local laws to be undone without any input from the local government. It is very unusual for state law to undo local ordinances.

The literature has no evidence of state government attempting to undo, or block local tree and landscape laws. This seems to be the case with Arkansas Senate Bill 637, recently introduced to the 90th General Assembly, Regular Session 2015.

Senate Bill 637 (the Landowner Tree Maintenance Protection Act) has been introduced and read twice on the Senate floor. This is an act to prohibit cities and counties from denying private property owners the right to "cut down or trim trees, bushes or shrubs." This bill that has been assigned to the City, County & Local Affairs Committee for debate. If enacted, it will be added as Sec. 1. Subchapter 4, Arkansas Code Title 14, Chapter 1.

Since local communities have had no input to the drafting of this act, the only option available is for planning directors across the state to appear before the committee hearings and demonstrate the implication of this act on a community's ability to maintain minimum canopy coverage and preserve trees on private land.

There is precedence for tree preservation on private land as affirmed by the New Jersey Supreme Court in the case Jackson Township vs New Jersey Shore Builders, 2008.

There are important implication of this act for the tree preservation ordinance and the landscape code of cities such as Fayetteville, Arkansas.

The tree preservation ordinance (Title XV UDC, Chapter 167) sets forth rules and procedures for trees that affect subdivisions, grading, hillside development and building permits. Act 637 will certainly require alteration of the city's base density calculation formula and their tree inventory rules. There are implications for the landscape code (Title XV UDC, Chapter 177) as well. There may be an inability to protect existing trees on steep slopes, over bedrock deposits, on erodible soils and located within natural onsite drainage detentions. Parking lot design, as well as the design of site perimeters, natural parking lot screens and narrow tree lawns, may also be affected by SB 637. Neither the tree preservation ordinance or landscape code set rules for the removal or pruning of "bushes and shrubs."

This bill is not very well written. The bill does not appear to have much understanding of the history of written tree laws, which go back to 1700 when the first written tree law was prepared for the area that is now Philadelphia. Trees on private and public property have been managed for the benefit of the community at least since 1630 when New England settlers set aside communal town forests. At that time, trees were protected, a measure to protect the supply of firewood, fencing, building materials and other elements to make town life livable.

If the Arkansas Senate understood American tree law, which dates back at least to the City Beautiful Movement of the late 19th century, this act would be scrapped. This major city improvement movement created modern tree ordinances in the late 19th century, a time when industrialization left cities dirty, unhealthy, gruesome and unsafe places to live.

Cities soon discovered trees serve important environment services that make city and small town living more pleasant, but more importantly, trees and landscapes with their positive effect upon soil, water, vegetation, climate, energy and human health and wellbeing help to maintain the sustainability of a community.

 




LASN associate editor for ordinances, "Buck" Abbey, ASLA, The Green Laws Organization, New Orleans, Louisiana

 







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June 16, 2019, 10:39 pm PDT

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