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Publication Date

3-2001

Document Type

Article

Abstract

Georgia is a state dominated by its forests and forest industries. Forests have defined the state since it was settled in the 1730s. Early settlers of the state enjoyed both the bounty provided by Georgia's forests and the use of those forests as they cleared land and built homes. Early forest products, in addition to lumber, included naval stores, "a tar-like substance which was used to caulk the seams of wood ships;" and live oak "knees," curved portions of the tree used as deck supports in wooden ship building. Indeed, Revolutionary War hero Nathaniel Greene, who had vast holdings on Cumberland Island, first pursued the sale of live oak knees found in Georgia. Commercial logging began in the 1880s after Georgia recovered from the ravages of the Civil War.

Admittedly, forest-related industries have not always been sensitive to the environmental impact of timber harvesting. Indiscriminate logging left mountains denuded and subject to wild fires fed by the plethora of logging debris. By the late 1930s even the Piedmont was deforested, and "one could ride for 40 miles without seeing a pine tree." Once-clear trout streams, such as the Oconee, Altamaha, and the Ocmulgee, ran red with silt as the "deep rich, dark topsoil," described a century earlier by William Bartram, eroded. ...

In enacting those tree ordinances, local authorities should look beyond the judicial carte blanche customarily given legislative decisions. The traditional judicial complacency with statutory enactments should yield to the "regulatory takings" analysis judicially developed in the Twentieth Century to reflect the increasingly regulatory environment within which land owners today find themselves operating. Section II of this Article will trace the evolution of the Fifth Amendment uncompensated takings jurisprudence from its pre-incorporation status in Barron v. Mayor of Baltimore to the regulatory takings analysis developed in the Twentieth Century. Section III will define exactions and expound upon the "roughly proportionate" requirement announced by the Supreme Court in Dolan v. City of Tigard.

Section IV will review tree ordinances as a regulatory taking under the analysis propounded by the Supreme Court in Pennsylvania Coal Co. v. Mahon, with particular focus on the impact of a resource's "severability" on the takings analysis. Section V will analyze and compare several tree ordinances in effect in Georgia and offer suggestions that would minimize the takings effect of those ordinances.

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