Arbor Day Celebrations Clouded by Challenges to Tree Ordinance

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Clearcutting in Encino Ridge

Good for developers, bad for the enviornment. Clearcutting like this is what catalyzed the Tree Ordinance. --photo courtesy San Antonio Tree Coalition

Monika Maeckle                         

“Laws are made by fools like me, but only God can make a tree.”

–from “Trees,” a poem by Joyce Kilmer

In San Antonio, Arbor Day takes place the first Saturday of November, when temperatures and soils are receptive to planting trees. The event has its roots in Nebraska in the 1870s, where a tree-loving journalist named Sterling Morton proposed the idea of planting trees to improve the environment.

Nature lovers will gather from 8 a.m. to noon in San Pedro Park this Saturday, November 3, for San Antonio’s 9th Annual Arbor Day celebration.  A tree giveaway, a “Tree-K” fun run, tree-planting demonstrations and other activities that aim to celebrate the “lungs of the earth,” will fill the morning as the many benefits of more trees –their ability to clean our air, save us water and electricity, provide shade and beauty, and store excess carbon – are celebrated.

One down, 999,999 to go. Seen on River Road--photo by Monika Maeckle

Want more of these? Come out and celebrate Arbor Day at San Pedro Park, where free trees will be given away to the first 250 attendees.

In addition to the merrymaking, arborists and tree fans are experiencing a bit of angst.  Just as San Antonio tries to recover from a historic drought that killed more than 300 million trees in Texas, and 5.6 million in the state’s cities, a challenge to the 15-year effort to get a strong tree ordinance on the books in San Antonio looms.  The Ordinance, modified in May 2010, established new rules that increased fees for the destruction of heritage trees and reduced the maximum number of trees that can be removed during the development process.   It also required additional tree planting on non-residential sites.

San Antonio City Forester Michael Nentwich said the City has fared exceptionally well, given the harsh circumstances of 2011.

“When I look at how we’re doing compared to areas like Houston,” he said.  The “feast and famine acclimation” of our native oaks, elms and junipers arm them with “a lot of mechanisms to deal with extremes,”  he said.

CPS’s Green Shade Tree Rebate program was awarded the 2012 Texas Community Forestry Award for the Arboricultural Project of the Year by the Texas Chapter of the International Society of Arboriculture and the Texas A&M Forest Service and is considered a “model for the country.”

“It used to be: keep San Antonio lame,” said Nentwich.  “Now, it’s keep San Antonio green.”

If a group of  property rights activists and developers have their way, San Antonio’s Tree Preservation Ordinance may be cut off at the knees – or at least at the city limits.  Texas Senate and House committee chairs recently invited testimony from developers and the City of San Antonio about nullifying the city’s tree ordinance in the Extra Territorial Jurisdiction (ETJ) in anticipation of the next legislative session.   Conservationists see the hearings as a serious threat to San Antonio’s right to enforce the ordinance in its ETJ.

The issue has proven as tenacious as a mesquite tree that just won’t die.  In 2009, Milestone Potranco, a Houston-based real estate development company, filed a lawsuit challenging San Antonio’s right to prevent “clear cutting”— that is, the wholesale clearing of land for development purposes – in areas outside city limits.   The Fourth Court of Appeals upheld San Antonio’s right to enforce the Tree Preservation Ordinance  beyond the city limits.  Former City Attorney Frank Garza, in an eloquent analysis of the Court’s decision,  wrote, “the court in this opinion recognized that city ordinances such as the tree ordinance have astounding effects on communities and understand that the Texas Legislature did not intend to diminish the effects in cities’ ETJs when properly crafted and adopted.”

Clearcutting in Encino Ridge

Good for developers, bad for the enviornment. Clearcutting like this is what catalyzed the Tree Ordinance. –photo courtesy San Antonio Tree Coalition

 

Sounds like the case is closed – but not so fast.

In last year’s 83rd session of the Texas Legislature, Robert Johnson, R-Jacksonville,  introduced Senate Bill 732, which aimed to gut San Antonio’s tree ordinance in the ETJ.  The bill was voted down after testimony from former San Antonio Mayor Phil Hardberger, District Eight City Councilman Reed Williams and others, and after Republican Sen. Jeff Wentworth joined Democrat Sen. Leticia Van de Putte in voting against it.  Then it resurfaced again in cloaked form when introduced by Sen. Tony Fraser, R-Horseshoe Bay, as Senate Bill 1655.  The bill passed, tacked on as a property rights issue, passed as an amendment to a separate piece of legislation in what opponents called a “sneak attack.”

“This bill is saying that if you’re in the ETJ of a city, you can’t vote for the city council people, you’re not paying taxes, you’re not using city services, you do not live in the city, the city does not have the right to tell you what you can do with the vegetation on your property,” Fraser said at the time.  He called it “a very clear personal property right issue.”

The bill was ultimately thrown out by the legislative parliamentarian.  The last-minute maneuver typified for many the ugly sausage-making that comprises the legislative process.

Michael Moore, state government liaison for the San Antonio Builders’ Association, had said at the time that San Antonio’s Tree Preservation Ordinance increases building construction costs in the ETJ by $3,500 and characterized the ordinance as “taxation without representation.”

San Antonio's ETJ, Extra Terrestrial Jurisdiction

Clear cutting in San Antonio’s Extra Terrestrial Jurisdiction (ETJ) could prove disastrous for trees and water management, conservationists say. Photo courtesy SAWS

“Most developers are happy to voluntarily meet the tree ordinance and many voluntarily exceed the tree ordinance requirements  because it enhances the value of their projects,” said Brenda Vickery Johnson, president of Vickery & Associates, Inc., a civil engineering firm.  Vickery said that sometimes the tree ordinance waxes impractical and cost prohibitive for developers.  “For instance, a developer may invest in a property that has little to no trees, and is planning to develop athletic fields or some other large footprint and they must meet the strict tree canopy rules by planting hundreds of trees along with other decorative landscaping, parking shade, street scape and landscape buffers which can cost $150,000 – $500,000+ in design, permitting, and installation costs to meet the requirements of the ordinance.”

Conservationists and tree advocates say that’s actually a bargain for the community, as an increased tree canopy saves money on water management, air quality, and energy conservation while increasing property values. “Decorative” landscape is actually functional, in that parking lots require shade to limit heat islands and evapotranspiration, (ET), which move moisture from the soil and ground to the air, a undesireable but constant consequence of our brutal Texas summers.  And then there’s a commercial benefit, said Nentwich.  “Where there are trees, people will spend money,” he said, citing numerous studies showing how trees boost business activity, especially in hot climates.

Evapotranspiration explained

Trees help limit evapotranspiration, the evaporation of moisture from the soil into the air. –photo via Wikipedia Commons

Nentwich’s tree advocacy is completely funded by fees paid into the San Antonio tree mitigation and canopy fund. Whenever real estate development projects lead to tree removal, developers are given two choices: plant minimum one-and-a-half inch caliper replacements from appropriate species, or pay fines of $200 per diameter inch of removed trees’ trunks to mitigate the losses.

Since 2005, the fund has generated more than $3.3 million for San Antonio tree planting, preservation and advocacy, according to Mark Bird, the city arborist.   “And unlike social security, it really is a separate fund,” said Nentwich, who said his budget can range from $500,000 to $1.5 million a year.

As next January’s legislative session gears up, conservation and tree advocates fear developers will once again attack the City’s right to enforce the tree ordinance in the ETJ.

“They’re revisiting the issue under an interim charge and there’s hearings on it,” City Attorney Norbert Hart said, referring to hearings reviewing the Private Real Property Protection Act, Chapter 2007 of the Government Code.

A hearing before the Committee on Land and Resource Management took place September 24.  The notice for the meeting proposed examination of the “current regulatory authority available to municipalities in their extraterritorial jurisdiction” and proposed making “necessary legislative recommendations to ensure a proper balance between development activities and municipal regulations.”

Another hearing, in the Senate State Affairs Committee,  scheduled for October 18 was cancelled.  The cancellation notice read:  “Charge 9:  Examine the effectiveness of the Private Real Property Rights Preservation Act (Chapter 2007, Government Code), and whether it should apply to municipalities.”

In a phone interview, Moore said he was “not aware of any action or legislation” that might challenge the tree ordinance in the upcoming Legislature.  He expressed a need for  state government to review cities’ exemption from the Private Real Property Rights Preservation Act.

“The biggest violator of people’s’ property rights is the City – not just the City of San Antonio but cities all over the state,” he said.

Richard Alles, a long time tree activist and engineer by training and a founder of the San Antonio Tree Coalition, balked at the “regulation without representation” argument. Alles and others contend that  people in the ETJ are represented by their County Commissioners, who participated in crafting the tree ordinance under an interlocal agreement with the City .  San Antonio developers have ample representation on tree ordinance committees, the Planning Commission, the Zoning Commission and City Council, said Alles.

“Even though ETJ property owners pay no City taxes, they enjoy the use of 100s of millions of dollars of natural areas in the ETJ along with libraries, parks and streets purchased by city taxpayers,” said Alles.

Alles documented the chess maneuvers of the last legislative session that almost sent our current tree ordinance to the grave.   Alles and others believe that a return to clear-cutting in the ETJ would be disastrous for the Edwards Aquifer, our storm management and air quality.

“If they’re allowed to clear cut in the ETJ, we won’t be able to plant enough trees to  make up the difference,” he said.

As he and other tree-lovers commemorate Arbor Day this weekend, they’ll be bracing for another round in the fight to maintain our tree ordinance.

Monika Maeckle covers butterfly and native plant news at the Texas Butterfly Ranch and urban nature for the Rivard Report. Find her on Facebook, or  Twitter, @monikam.

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