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<br />Standards is enforceable within the city's
<br />five-mile extraterritorial jurisdiction (ET]) in
<br />Milestone Patranca Development, Ltd. v. City of
<br />San Antonio (2009 WL 1471881).
<br />In Texas, municipalities may regulate
<br />subdivisions but not the use of property within
<br />the ETJ, Milestone, the developer, argued that
<br />the city did not have the statutory authority
<br />to regulate trees ln the ETJ because the tree
<br />ordinance is not a "rule governing plats and
<br />subdivisions of land" but a "purely aesthetic
<br />regulatory scheme," not pertaining to "basic
<br />infrastructure." Milestone also maintained
<br />that the ordinance was overly broad in its
<br />application.
<br />
<br />. to encourage the preservation of trees for
<br />the enjoyment of future generations
<br />. to provide health benefits by cleansing and
<br />cooling the air
<br />o to add value to property and reduce energy
<br />costs
<br />. to reduce the amount of pollutants entering
<br />streams
<br />-0 to provide incentives to encourage the
<br />maximum preservation of trees
<br />. to create an urban environment that is
<br />aesthetically pleasing and promote economic
<br />development through an enhanced quality of
<br />life
<br />
<br />Developer: San Antonio did not have the statutory
<br />authority to regulate trees in the extraterritorial
<br />jurisdiction because the tree ordinance is not a
<br />"rule governing plats and subdivisions of land"
<br />but a ')urely aesthetic regulatory scheme."
<br />
<br />John Tedesco, a local writer, noted that some
<br />of the "fastest growing areas of San Antonio have
<br />been in the E1], where the city can enforce some,
<br />but not all, of its ordinances. The city's tree rules
<br />mandate that developers preserve some trees and
<br />pay mitigation costs for, trees they bulldoze."
<br />The tree ordinance spelled out its purposes:
<br />. to preserve trees as an important public
<br />resource
<br />
<br />
<br />Without using the phrase "police
<br />power," the court's decision ultimately
<br />rested on the municipality's police power in
<br />Texas Local Government Code 9 212.002 to
<br />adopt rules that "promote the health, safety,
<br />morals, or generai welfare. . . and the safe,
<br />orderly, and healthful development of the
<br />municipality." The seven stated purposes or
<br />objectives of the tree ordinance indicated
<br />
<br />that it was intended to be "more than simply
<br />an aesthetic regulatiof!.'" the court said, .
<br />and thus qualifies as arule"governing plats'
<br />. and subdivision of land." The coort also
<br />concluded that the tree ordinance requires
<br />only those developers who are filing a major
<br />or minor plat application to provide a tree
<br />affidavit ortree permit application, and that it
<br />is not overly broad.
<br />A shorter abstract ofthis case was
<br />included in PEL's new RSS feed on May 20,
<br />2009. See www.planning.orgjpel.
<br />
<br />Lora Lucero, AICP, is editor of Planning &
<br />Environmental Law.
<br />
<br />ZONING REVIEWS
<br />
<br />SMART GROWTH POLICIES:
<br />AN EVALUATION OF PROGRAMS
<br />AND OUTCOMES
<br />
<br />Gregory K. Ingram, Armando Carbonell, Yu,
<br />Hung Hong, and Anthony Flint (2009; Lincoln
<br />Institute of Land Policy; 288 pp.; $35)
<br />
<br />How effective is smart growth? As with many
<br />things involving broad policy and urban de-
<br />sign initiatives, the answer has often proven
<br />elusive. The Lincoln Institute'set out in 2006 to
<br />examine the efficacy of state policies over time
<br />in states with strong smart growth programs
<br />and others with various land management ap-
<br />proaches. By and large, most states succeeded
<br />in some areas and not in others; the bottom-
<br />line lesson is that they need to maintain a
<br />focused effort with regard to their policy goals.
<br />
<br />VOL. 26, NO.7
<br />Zoning Practice is a monthly publication of the American Planning Association. Subscriptions are
<br />available for $75 (U.s.) and $100 (foreign)..W. Paul Farmer, FAICP, Executive Director; William R. Klein, AICP,
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<br />Zoning Practice (J55N 1548-0135) is produced ct APA. Jim 5cn\-vab, AICP: and David /vlorley, i..iCP~ Editqrs;
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