Tree Mitigation Law Effective December 1 Provides Fee Reducing Credit for Developers

Posted by Communications Director, With 0 Comments, Category: 2017, Communications, Government, Govt Relations,

By Phil Crone, Dallas Builders Association Executive Officer
and Jackson Walker

Many Texas cities regulate the removal of trees from private property as development occurs. Often, this takes the form of a fee paid by the property owner to the city as a condition for permitted removal of the tree from private property. The methods and valuation used to calculate tree removal fees vary greatly among municipalities. In some cases, these fees can approach the figure paid by the property owner to acquire the property to begin with and render development financially infeasible.

Developers have worked for years to get legislation passed that would allow them to reduce their tree mitigation fees by planting new replacement trees. It looked like a tree mitigation fee credit bill had finally become a reality when the Texas Legislature passed Senate Bill 744 this session. However, that tree mitigation fee credit bill died when Governor Greg Abbott vetoed the bill because it did not provide enough protections to property owners. While developers and property owners would have loved a bill that provided them greater protections, Senate Bill 744 was seen as a step in the right direction.

Governor Abbott quickly eased property owners’ disappointment by adding tree regulation to the topics of the Special Session. Specifically, during the Special Session, House Bill 7, authored by State Representative Dade Phelan (R-Port Neches) and State Senator Lois Kolkhorst (R-Brenham), was proposed to provide developers and property owners with more protections than those set forth in the previous Senate Bill 744.

HB 7 requires municipalities to apply a credit of up to 50 percent (40 percent for commercial projects) of the fee assessed for removing a tree on a residential development if the property owner plants a qualified replacement tree. Specifically, that replacement tree must be at least two inches in diameter (4.5 feet above ground) and the municipality can specify the species and method for replanting. The tree may be planted either on the property or in another location mutually agreed upon. Additionally, a municipality may not prohibit the removal of a tree that is diseased, dead or poses an immediate threat to persons or property.

In other words, if a municipality assesses a mitigation fee of $10 per inch or $100 for a 10-inch tree, a residential developer who plants a replacement tree can receive a credit of at least $50 (50 percent). Prior to the bill, the credit, if provided at all, may only be $20 for a 2-inch tree. As such, the bill recognizes the future growth potential of newly planted trees. The credit should serve as a catalyst for property owners to plant replacement trees, while municipalities maintain broad latitude when it comes to regulating the methods for and fees associated with tree removal.

On Aug. 16, 2017, Governor Abbott signed House Bill 7 into law, which takes effect on December 1, 2017.  While this bill provides greater protections to homeowners, residential and commercial developers will also likely view this bill as much needed relief to the burden of high tree mitigation fees.

Below is a breakdown of the tree mitigation fee credits allowed by House Bill 7:

Type of Property Tree Credit
Existing one-family or two-family personal residence and the tree to remove is less than 10 inches The City may not impose a fee
Existing one-family or two-family personal residence and the tree to remove is greater than 10 inches 100% tree credit (i.e., you can entirely eliminate the fees by planting new trees)
Residential developers, including single-family and multifamily 50% tree credit (i.e., you can offset fees by at least 50 percent)
Commercial developers and properties 40% tree credit
Tree is diseased, dead, or poses imminent or immediate threat to persons or property  The City may not impose a fee