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American poet Joyce Kilmer wrote, "Poems are made by fools like me but only God can make a tree." But Kilmer also volunteered to fight for liberty in WWII and sacrificed his life in that cause in the process.

Thursday, July 7, 2005

By Ralf Seiffe

Tree Ordinances are the latest fashion in the never-ending assault on liberty.

Sold as a method to preserve an area’s “character”, these ordinances actually serve to take private property for public purpose. Positioned under the guise of “protection” they thereby avoid the muss and fuss of the Constitution’s requirement for just compensation.

Less than a fortnight after the Supreme Court’s notorious Kelo decision, the Daily Herald reported the story of a Barrington man who created a lawn on his property by felling a number of trees.

Unfortunately, the trees that displeased him had already been appropriated by the village for its purposes so, even though the trees were on his property, he did not really own them. In this case, the village effectively asserted a property right. Disguised as a regulation, it fined the homeowner $60,000 because he did not get permission from the village to cut them.

Someone who needlessly fells trees should be regarded with the same opprobrium as Mr. T, that obnoxious actor who clear cut the trees at his Lake Forest home nearly twenty years ago. Nevertheless, he did own them and there was no ordinance to prevent the cutting of trees then.

Since then, villages have passed ordinances that prohibit cutting a la Mr. T as well as the sort that a conscientious property owner might undertake.

When such ordinances are imposed, the property owner’s relationship with a tree changes from owner to guardian. Since a guardian has fewer rights than an owner, something has been taken from the owner and transferred to someone else.

One suburb considering a tree ordinance illustrates the thinking behind these measures.

It is my own town of Wilmette, a village that has led the erosion of liberty for many years.

Its bona fides include taking a private restaurant’s property and transferring it to a more favored developer, outlawing handguns and prohibiting consensual smoking in private establishments.

With trees in the trustees’ sights, three questions occur. How does this transfer operate; who benefits; and is it a taking under a common sense interpretation of the Fifth Amendment?

Wilmette’s proposed ordinance is written in the French style of lawmaking and shows the arrogance of the village’s elitists.

It presumes the government’s prerogatives and prohibits all tree removals unless the “owner” of the trees can prove he meets the village’s conditions rather than requiring the village to show cause in removals.

With certain exceptions--such as trees that may be growing through your proposed living room--the ordinance is incomprehensible to all but cloistered tree huggers.

It speaks of “breast height diameters” and “critical root diameters” and “certified arborists”. It has appendicies to confuse residents and creates formulae to make sure lawyers can’t cite vagueness when challenging the law. At the same time, this very complexity keeps mere mortals from understanding the law--or attemping to prune their yards.

This initiative’s sponsors have been pushing it for some time. The usually thoughtless have their yard signs out to support the ordinance.

They probably think the measure will save their village from tasteless Iranian gynecologists sporting chainsaws or from Polish developers putting four-acre houses on half acre lots.

The code words for this are “preserving the character of the Village”. The unintended consequence--or, more likely, the explicit goal of the sponsors--is to prohibit rehabilitation of the village’s old housing stock.

By restricting tree felling to the buildable area of a lot, it’s hard to put on an addition. On the other hand, almost all new construction--teardowns, mostly--requires a variance to the current buildable area. That exempts the trees included in the new, larger buildable area. It is probably only a Kelo coincidence that new construction usually generates bigger tax collections.

In these ways, the supporters of the ordinance coerce a benefit for themselves--the “current character” of the village--at the expense of the property rights of others who may see things differently.

The Village’s posturing that this isn’t a “taking” is contradicted by the proposed ordinance’s preamble. It states “...it is the goal of the Village to protect, where possible, existing trees on private property and that such public policy regarding the protection of trees on private property in the Village would serve the important public purposes of the preservation of trees as an important public resource…” Emphasis added to this gobbledy-gook.

What this ordinance appears to say is that the protection of trees serves an important public purpose and that trees are a public resource. This justifies their protection, according to the village.

Protection, in this case, means eliminating an owner’s rights and that certainly seems like a taking under a plain reading of the Fifth Amendment.

Joyce Kilmer, the American poet wrote a wonderful verse that ends:

“Poems are made by fools like me but only God can make a tree."

Activists often quote Kilmer’s words to whip up emotions to help overcome more logical arguments about takings involving trees.

But one wonders what Kilmer might have thought about imperious nations, or municipalities.

At the age of 31, the poet volunteered to fight in the war that was meant to save the world from tyrants and to make it safe for democracy.

Kilmer died protecting our liberties, his brilliance cut short by the hand of a sniper in the service of an emperor. He was buried in an American Military cemetery in France, presumably near a copse of trees. Activists should remember that despite his immortal words, his actions in the cause of liberty speak much louder.

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Ralf Seiffe advises business start-ups and product launches from Chicago, Illinois and is a political analyst and columnist for the Illinois Leader.