Arizona bill would limit protections for native plants, saguaros

A former homebuilder is sponsoring a bill in the Arizona Legislature that would prohibit cities from requiring that saguaros and other native vegetation be transplanted when open land is developed.

The bill also would prevent municipalities from requiring specific types of plants in landscaping.

The salvaging portion of the bill is supported by the Home Builders Association of Central Arizona and by lawmakers who are or have been homebuilders. They say ordinances in Phoenix, Scottsdale, Mesa and other cities protecting native plants are a waste of money.

The cities oppose the bill.

Rep. Darin Mitchell, R-Litchfield Park, a former custom-home developer, is the sponsor of House Bill 2570.

"At its heart, HB 2570 is a property-rights bill," Mitchell said. "It seeks to push back against cities which have created an environment where the rights of property owners have been too restricted."

The bill proposes that cities be barred from adopting rules mandating that native plants be salvaged or requiring the planting of specific types and sizes of plants and trees. The breadth of the language means the bill could affect city ordinances and planning guidelines across the region.

Several cities now require that native plants be transplanted when desert land is cleared, and dictate what type of vegetation can be planted in a development. Phoenix, Scottsdale, Peoria and Mesa have additional rules in the northern reaches of their cities to protect native plants and preserve desert views and a sense of place.

For example, Phoenix zoning rules state, "Development should minimize the removal of existing healthy Sonoran Desert vegetation. ... If removal is necessary, mature trees and cacti should be salvaged and utilized on site."

Those rules cite 19 species that should be salvaged, including saguaro, ocotillo, ironwood, mesquite and paloverde. Other cities have similar requirements.

Saguaros, which are unique to the Sonoran Desert, are often featured as the iconic images of the region. Other native plants, such as the ironwood, aren't as well known but also add Arizona character.

"It would have a fairly major impact on what we are trying to do in terms of creating character areas in the city," said Gordon Sheffield, Mesa zoning administrator. "Landscaping is a big part of theming a character area. We lose the ability to try to control the character in the area. Often residents tell us that is important to them."

Mesa's guidelines for the desert-upland area in the northwest portion of the city require open areas to "reflect the character of the undisturbed desert." At least 90 percent of the plants in perimeter areas of a development must come from a list of preferred plants the city maintains (paloverde, mesquite, acacia, saguaro, etc.), and none can come from a list of prohibited plants (oleander, olive, pine, etc.).

How an Arizona bill could impact native plants

Mitchell's bill would require that landscaping for developments meet the recommendation of a registered landscape architect. Lobbyists for the cities are concerned this provision would allow property owners to install any type of vegetation they like.

Mitchell said in a hearing on the bill and via e-mail that the state already has protections for native plants, and that cities will maintain some control over the types of plants and trees used.

"The cities would still be able to negotiate with developers regarding development plans. ... They just won't be able to dictate to the developers regarding these issues," Mitchell said.

The state Agriculture Department, however, only requires a notice that land will be cleared. That notice gives salvage companies 20 to 60 days to harvest and box the vegetation to be transplanted.

The state law does not require landowners to allow salvage companies access; it only encourages it.

Mitchell said that when he was building custom houses, he was forced by cities to pay for a survey of native plants, and then to box and water certain plant species to be replanted once construction was done.

"They usually didn't look very good because they were natural to begin with," he said. "It cost me a lot of money, and half the time if they lived through the process, they died when I planted them."

Mitchell has support from Rep. Warren Petersen, R-Gilbert, who sells houses for his family company, VIP Homes. Petersen said during a committee hearing that salvaged native plants are often unsightly.

"It just pains me to see this economic waste because somebody believes they know how to use your property better than you do," Petersen said.

Even though Petersen cited the financial benefit to developers as the rationale for his vote in favor of the bill during a committee hearing, he did not abstain from the vote.

Rules for the 52nd Legislature state that lawmakers with a personal financial interest in a bill may abstain from acting on that bill, and questions about the propriety of any action on such a bill can be reviewed by the Ethics Committee. The rules don't require abstention.

"I don't have to," Petersen said, adding he discussed the matter with an attorney. "This bill is for every property owner. ... This applies to anybody, not just homebuilders."

Petersen said city ordinances hurt the economy.

"This is the first time the housing economy has not recovered (from a recession)," he said. "And I think a big reason for that is municipal regulations."

Cities that would be affected by the bill have lined up against it.

"It is a local control issue," said Scott Butler, government-relations director for Mesa. "Does the state need to get into trying to pre-empt the cities on what types of plants are used? ... The notion they would pre-empt the municipalities so homebuilders could save a few bucks is just bad public policy."

Scottsdale adopted its native-plant ordinance in 1981.

"We've worked very hard to find the right balance between development and preserving the character and feel of the Sonoran Desert," said Brad Lundahl, Scottsdale's government-relations director. "This bill would throw away 40 years of good progress."

He said ordinances protect the city's status as a tourism destination.

"One of the reasons why we are so sought out as a destination is the look and feel of the Sonoran Desert," Lundahl said. "That's what brings people from all over the world. If it is eliminated, where is the demand?"

Alan Stephenson, planning-and-development director for Phoenix, said the bill would affect special regulations the city has in place for high densities of trees along the light-rail system.

The bill would prohibit cities from requiring certain landscape densities.

"Where the city is focusing a lot of efforts is downtown and along light rail, where we want to promote walkable development," Stephenson said. "We want it where you can walk five or 10 minutes to an apartment, restaurant or office and have good shade."

Mitchell said Thursday he is working on an amendment to the bill that would update state law and require, rather than recommend, that developers allow salvage companies to access native plants to transplant them.

It's unclear whether the bill will make it through the Legislature by session's end. But lobbyists for the cities said they need to be prepared should it get revived.

House Bill 2570

The proposed bill's language states:

A municipality may not adopt any, or part of any, ordinance, stipulation or other legal requirement that requires a property owner to:

1. Salvage plants, trees or other vegetation species, if the property owner files a notice of intent to clear land with the Arizona Department Of Agriculture, pursuant to section 3‑904, for any plant, tree or vegetation species that is protected by state law.

2. Install a specific plant, tree or vegetation species or size of plant, tree or vegetation species.

3. Install a density of landscaping that exceeds the recommendations of a landscape architect registered pursuant to title 32, chapter 1 or the drought‑tolerant standards adopted by a statewide association of landscape contractors.