Private Property: Protecting Texas’ Future
Since before our nation’s founding, private property rights have been recognized as an indispensable pillar in supporting a free and prosperous society. Private property, and the rights inherent in ownership, are foundational for a free people because they are the product of a person’s labor. If a person cannot enjoy the fruits of his or her labor by the acquisition and use of private property, that person lacks a constitutionally guaranteed security. Robust property rights empower us to pursue our own dreams and live according to our own personal values.
Nowhere is this better understood than Texas. Early Texas settlers took extraordinary risks to experience the promise of property ownership for themselves. Despite this legacy, Texas law does not provide adequate protections against government regulations, eminent domain, and regulatory takings that disrupt or prevent a property owner’s right to use and develop their property.
The Fifth Amendment to the U.S. Constitution says “No person shall be…deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” This section is nicknamed the “Takings Clause” and a plain reading of the text indicates the Founders’ intent that the language be given the broadest possible reading, applying to all types of property and to all the various rights that comes with ownership.
Over time, however, the U.S. Supreme Court has turned away from the plain meaning of the Takings Clause. The Court instead differentiates between different types of regulatory takings, giving each a different degree of protection. The most ambiguous type of taking, a regulatory taking, (as opposed to a physical taking) occurs when government regulations interfere with a landowner’s right to use, develop, and dispose of his or her property. The property owner is left with physical possession but the accompanying “rights of use” to the land have been taken.
This type of regulatory taking is popular with local governments and has spread rapidly, with many cities across Texas, including Austin, Houston, Dallas, and San Antonio adopting burdensome regulations that are tantamount to a physical taking because they often deny the property owner the economically beneficial use of his or her land.
Tree ordinances passed by cities are particularly egregious regulatory takings. These ordinances treat trees differently than other types of vegetation on an owner’s property. For example, picking flowers or shrubs does not generally require government permission, but in many cities trimming or removing a tree without government approval is a violation of the law. Ordinances regulating trees have been known to stop home building plans, prevent driveways, and generally inhibit homeowner development on their private property. Unfortunately, from local governments to the state, protecting property rights has more to do with the revenue loss than the trees.
Supporters of the status quo often attempt to defend these big government regulations on the basis of “community enhancement” or some other communal benefit arguing, for example, that trees can improve the property values for neighborhoods, or mitigate flooding.
These arguments ignore the fact, however, that trees are not a collective resource of society. When an individual purchases a piece of property, the government does not come in and plant the trees, cultivate the trees, or trim the trees. All of the responsibility of caring for the trees is left to the property owner, until the owner decides there is a compelling need to remove or trim a tree. Then, somehow, the government assumes ownership and the right to regulate.
Trees are real property which should be controlled by the private property owner. Article I, § 17 of the Texas Constitution state “No person’s property shall be taken….without adequate compensation being made.” Rather than compensating the landowner, however, cities are actually charging them – for their own property! This action is beyond outrageous and must be stopped.
“Government has a responsibility to protect the rights of its citizens,” said Governor Abbott in a recently released statement. “Unfortunately, local governments throughout Texas are infringing on private property rights and prohibiting Texans from being able to do what they want with their own land. That is why I have added this item to my special session call, and I’m grateful to Sen. Hall and Rep. Workman for their efforts to end this regulatory overreach.”
I am pleased to help strengthen private property rights and protect landowners from local government overreach by barring cities and other local political entities from restricting the ability of a property owner to remove a trees from his or her own land. Because really, what is more “local” than you, the property owners, having the ability to make the choice on how you use your own property?