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A Lesson on Tree Preservation

By Buck Abbey, ASLA, Robert Reich School of Landscape Architecture, Louisiana State University




Tree ordinances or landscape codes must be carefully crafted to follow state statutes affecting the zoning and development of cities. When a tree ordinance or landscape code is written, it must cite as its authority the appropriate enabling act. Pictured is New York State Assemblyman Bill Reilich (closest to the tree) participating in an annual Arbor Day tree planting.
Cost of Wisconsin
Rain Bird
Playworld Came America

''The Potranco case provides significant clarification for exactly
what can and cannot be enforced.''
--Frank J. Garza, Davidson & Troilo, P.C. 2009

Many recent studies have pointed out the importance of the urban forest canopy for quality of life. Studies by tree experts, biologists and even landscape architects show that the urban forest of any community provides valuable environmental benefits.

Those benefits go beyond aesthetics to cleaning the air, purifying water, spatially composing the city and providing wildlife habitat Trees and forest help cities become sustainable. The urban forest is one of a city's most dominant tools for the recycling of energy from the sun while at the same time reducing the use of artificial energy produced by hydrocarbons in the form of coal, oil, natural gas and generated electricity.

Tested by Law
Not only are scientific studies being conducted on the importance of trees in the city, but lawsuits are testing them in the courts based upon the way they are written and follow state law. Two recent cases are worth citing.

The tree ordinance for Jackson Township, New Jersey, Chapter 29, Shade Tree Commission, Chapter 100 Tree Removal, Code of the Township of Jackson New Jersey, v163, Part II General Legislation was tested in court to see if the township could regulate the removal of trees and control the indiscriminate and excessive cutting of trees during development operations.

In the case New Jersey Shore Builders Association vs. Township of Jackson, the New Jersey Supreme Court in a 7-0 vote overruled the trial and appellate courts and upheld the township ordinance to require developers replace the trees they remove during development or pay a fee into a special "tree escrow fund" dedicated to planting trees and shrubs on public property.

The court ruled the tree removal ordinance a valid exercise of police power because the details of the ordinance, including the tree replacement fee, the escrow fund, and the planting of trees and shrubs on public property when replanting at the original location was not feasible, were rationally related to the broad environmental goals that inform the ordinance.

The court pointed out that ordinances enacted under the police power statute that is part and parcel of community zoning are presumed valid.

This court decision may lead to enhanced funding for tree planting in local communities to the extent that there will be no net loss of trees as a result of development. But more importantly, this decision may be the key to preserving urban trees and holding developers responsible for their replacement.

The lesson learned is that tree ordinances must set forth a reasonable method of requiring tree replacement following construction. Known variously as tree mitigation, tree replacement requirement, or minimum canopy preservation standards the purpose of a well written regulation is to see that when trees are removed from a construction site they are replaced.

With this N.J. Supreme Court judgment, all communities in New Jersey with similar tree preservation requirements that are carefully crafted to protect the environment services provided by trees will be allowable under local regulation.




The lesson learned is that tree ordinances must set forth a reasonable method of requiring tree replacement following construction.

Preserving Trees in Texas
In San Antonio a developer challenged a recrafted tree ordinance in the San Antonio, Texas municipal code concerning landscape, buffers and tree preservation. In Milestone Potranco Development, Ltd. v. City of San Antonio, heard before the 4th Court of Appeals, the developer argued the tree ordinance violated the Texas local government code and was so broad that it affected the removal or pruning of trees even by individuals on their own personal property. The developer also argued the city policy did not apply to extraterritorial jurisdictions (ETJ). The city countered it had the right to legislate regulations for the development of land that would require preservation or planting of trees as a condition of development. The court found in favor of the city. As a result of this decision, cities have the precedent of law to require the preservation of trees on plats and subdivisions of land both within the city and any bordering lands in which they claim jurisdiction. The court ruled that city ordinances such as the tree ordinance provide the power to local government within the rule of the Texas local government code to ensure the health, safety and welfare of the community by preserving trees or having them replaced by the developer.

What is the lesson learned? The court tested for three things. First they looked to see if the tree preservation regulations related to the development of plats and subdivisions outside normal city boundaries in the area known as an extraterritorial jurisdiction was enforceable. They wanted to know if the purpose of the tree ordinance "enhancing the quality of life and the general welfare of the city and enhancing its unique character and physical, historical and aesthetic environment" was being served in the EJ. The conclusion was yes, the city did have the right to extend it development regulations to its sphere of influence as represented by the ETJ.

The second test was if the ordinance was overly broad and not narrowly focused on solving an important standard of land development regulations. The court concluded that the ordinance as written does pertain to the development of plats and subdivision only and did not apply to all applications of city building. The tree ordinance code language was written specifically to address land development and tree removal.

The third test was to determine if the tree ordinance regulates the use of property in the city in a manner that is prohibited by the Texas local government code. The court conclusion was the tree ordinance does not regulate the use of property in violation of state law. The meaning here is clear, tree ordinances or landscape codes must be carefully crafted to follow state statutes affecting the zoning and development of cities. When a tree ordinance or landscape code is written, it must cite as its authority the appropriate enabling act.

Writing Local Code
The most important thing about any green law is how it is written and administered. A landscape code or tree ordinance that is broadly written and does not closely follow state statutes is not enforceable. The local ordinance must be narrowly written to protect the health, safety and welfare of citizens while achieving stated public objectives, purpose and goals. There must be written into each ordinance easy to understand standards and technical requirements as well as a working procedure that is easy for the developer, landscape architect and city administrators to interpret and follow.

A tree ordinance or landscape code without a fair and equitable compliance and enforcement procedure will not be effective. A particular appointed person in city government, trained as an arborist, landscape architect or planner, must act as the landscape or tree authority for any community and given the power to not only speak for trees but to enforce all local regulations pertaining to trees including regulations involved with permits, violations, penalty and fines.

As more and more lawsuits are filed against tree and landscape regulations to clarify the law, we will better understand legal protection strategies for trees.


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June 18, 2019, 7:04 am PDT

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