FAIRHOPE, Ala. — More questions were raised Monday about the legality of some sections of the the city’s tree and landscape ordinance.

“The city doesn’t have any jurisdiction there,” Mayor Tim Kant said after Monday’s Planning Commission meeting, referring to enforcement of the “tree ordinance” on state and county rights of way located in Fairhope’s city limits and planning jurisdictions.

“We’re going to have to go back and revisit some of those issues,” said Kant, regarding ongoing efforts to revise the city tree ordinance by the Fairhope Tree Committee.

Last week, that committee voted to send a letter to Kant requesting that he enforce the tree ordinance for the removal of trees along a state-owned right of way on U.S. 98 in front of The Shoppes at Fairhope Village. The letter will request that the city issue a municipal offense ticket against two property owners that have businesses on property they own adjacent to the state right of way, according to statements made by committee members at the April 1 meeting.

Kant said Monday he had not received the letter yet, but that it should have been addressed to the police department, which issues municipal offense tickets, and not to his office, which must remain independent of such decisions. He did state if that particular tree-cutting case does go to court, the defendant would have a strong argument that the city lacks jurisdiction on that specific property based on a recent opinion from the Alabama League of Municipalities.

“We’ve discussed your question and don’t see how the city can control trees in the situations you’ve mentioned,” stated ALM general counsel and deputy director Ken Smith in a Monday e-mail sent to City Clerk Lisa Hanks. “I believe Mobile and possibly Auburn have local acts controlling trees, but there is no statewide authority I’ve located.”

Smith’s e-mail was in response to one sent to the ALM on Friday by Hanks.

“The committee is an advisory committee only,” Hanks stated by e-mail on April 2. “They are revising the tree ordinance, and we have a few questions regarding this issue.”

Hanks’ e-mail asked these two questions of the ALM:

“(1) Does the municipality control the right-of-ways outside the corporate limits on state or county right-of-ways within their police and/or building jurisdiction? Or a state or county right-of-way that runs through a municipality?”; and

“(2) Can the municipality enforce tree plantings on private property outside the corporate limits that are not in subdivisions, i.e., making a person or entity plant a specific number of trees based on the ordinance? Can we impose these requirements as written in the tree ordinance or is it just building codes we can enforce?”

The ALM opinion and Kant’s statements Monday raise questions about a number of specific provisions in the tree ordinance that empower the city horticulturist to make decisions about tree plantings and removals on rights of way within Fairhope’s city limits and planning jurisdiction.

Questions had already been raised about the committee’s power to hear appeals from decisions made by the city horticulturist in such cases, following a letter sent last year from City Attorney Marion “Tut” Wynne. That letter stated that advisory committees and boards are significantly limited in their powers, which raised questions about the committee’s appellate power.

The committee plans to hold a special meeting soon to finalize revisions of the tree and landscape ordinance, which will then be submitted to the City Council for its consideration and adoption. That meeting date has not yet been announced.