The Texas Attorney General recently issued opinion KP-0155 addressing the issue of whether, under certain circumstances, municipal tree preservation ordinances might violate the Takings Clause of the Texas Constitution.
The opinion begins by noting that although there are some differences between the Takings Clause in the Texas Constitution and the Takings Clause in the United States Constitution, the two are similar enough that Texas courts usually refer to opinions interpreting the federal clause when interpreting the Texas clause.
The AG opinion notes that there are two types of takings that may arise. The first is a per se taking which occurs when a governmental action denies a landowner all economically viable use of the property and focuses its inquiry on determining whether any value remains in the property after the governmental action. A tree preservation ordinance could theoretically affect an entire parcel of land rendering it valueless and eliminating any possibility of the landowner realizing any economic value from the property.
The more common situation will arise when an ordinance affects one or two trees on a property without rendering the entire parcel of land useless. The AG Opinion recognizes that a taking may occur if a governmental action imposes a restriction that unreasonably interferes with the landowner’s rights to use and enjoy a property. Determining whether a taking occurs in this situation requires a fact intensive analysis under the factors set forth in Penn Central Transportation Co. v. New York City 438 U.S. 104 (1978).
In Penn Central, the Supreme Court stated that a use restriction on real property may constitute a taking if not reasonably necessary to the effectuation of a substantial public purpose, or, if it has an unduly harsh impact upon the landowner’s use of the property. The Penn Central factors used to determine whether a landowner’s rights have been deprived to such an extent that a taking occurs are set forth below:
- the economic impact of the regulation on the owner;
- the extent to which the regulation interferes with a distinct investment backed expectation of the landowner; and
- the character of the governmental action.
The “economic impact” factor focuses on the extent of the diminution in value of the property as a result of the regulation. The greater the economic loss a landowner suffers as a result of the regulation, the more likely a court would determine a taking occurs.
The second factor focuses on determining the legitimate expectations of the landowner regarding which rights the landowner would have when investing in the property. If the landowner’s expectations regarding his or her use of the property are limited by the governmental action, then it is more likely to result in a taking. Under this factor, the focus is on the landowner’s expectations at the time of purchase and whether a later enacted ordinance limits those rights.
The third factor asks whether the regulation is aimed at the broader public good and burdens the public at large or whether the regulation results in a greater burden on the individual landowner. A court is more likely to find the ordinance results in a taking in the latter situation.
While the AG Opinion is not binding upon a court of law, the analysis provides highly persuasive support for landowners impacted bye local tree preservation ordinances that wish to challenge the impact of those ordinances under the Takings Clause of the Texas Constitution.
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