Green Gold: Hands Off My Trees  

December, 2021 - Stephen Estey and Alan Greene

Trees are ubiquitous. They are a natural part of our landscape and valued for the beauty they provide (not to mention the environmental benefits) as well as their lumber and economic value. Landowners often value their trees, but when a landowner needs to remove trees for development tensions can arise between the government’s interest in preserving and protecting the environment and the landowner’s inherent property rights.

Often these pressures are most prevalent in local governments so-called tree or woodland ordinances. Such ordinances generally mandate permit and mitigation requirements for landowners when trees are removed, typically by requiring either

  1. replanting of trees based on diameter at breast height (d.b.h.),
  2. payment of a designated fee based on the number and size of trees removed, or
  3. in extreme circumstances, limitations on a removal of a percentage of so-called woodland stands, which, in effect, operate as a forced conservation easement over property for the benefit of the public.

These regulations can limit the amount of land that can be developed or require the landowner to bear significant costs related to the replacement of his/her own trees. Moreover, the replacement requirements may result in many more trees planted than the original trees removed due to the age or size of the trees being cut down.

Often developers faced with these restrictive tree ordinances suffer a meaningful economic impact as the cost and delay of challenging such ordinances can be prohibitive. However, a recent decision handed down by the Sixth Circuit Court of Appeals applied constitutional scrutiny to a local ordinance and provided a potential argument for landowners and developers looking to push back against such laws.See F.P. Development, LLC v. Charter Township of Canton, No. 20-1447/1466 (CA 6, 2021).

InF.P. Development, a real-estate holding company (“F.P.”) purchased a 62-acre parcel of land in the Charter Township of Canton, Michigan, in 2017 in order to expand an existing business on the adjacent property. After leaving it undeveloped for nine years, F.P. decided to split the property in 2016 with the intention of selling one of the new plots of land. The two parcels were bisected by a county drainage ditch which was clogged by fallen trees and debris, however, and after the county refused to clear the ditch, F.P. hired a timber company to clear the ditch and other trees on the property. Shortly thereafter, the Township was made aware of the tree removal, and they issued F.P. a Notice of Violation under their 2006 tree removal ordinance (“Tree Ordinance”).

Canton’s Tree Ordinance outlines a number of specific categories of removals, none of which the F.P. removal fell within. F.P.’s removal, and therefore, fell within the Tree Ordinance’s general provision requiring a tree removal permit application and approval by the Township. If Canton issues a permit, the tree owner must agree to mitigate the removal:

The Tree Ordinance lists three standardized mitigation options: a tree owner can replace removed trees on its own property, replace them on someone else’s property, or pay a designated amount into Canton’s tree fund so the township can replace them elsewhere.For every landmark tree cutdown, a tree owner must replant three trees or pay about $450 into the tree fund. For every non-landmark tree cut down as part of a larger-scale tree removal, a tree owner must replant one tree or pay about $300 into the tree fund.If a tree owner fails to comply with those requirements, Canton sends a notice of violation and requires that the tree owner submit a permit application or face an enforcement lawsuit. (Emphasis added).

The Township conducted a survey to determine the extent of F.P.’s unauthorized tree removal and found that 159 trees had been removed, including 14 landmark trees and 145 non-landmark trees. Based on the Tree Ordinance, the Township determined that F.P. must either replant 187 trees or pay $47,898 into the Township’s tree fund. Astounding, particularly given that these trees were on F.P.’s land and owned by F.P.

Following numerous arguments from F.P. challenging the constitutionality of the Tree Ordinance, the Sixth Circuit Court of Appeals held that, as applied to F.P., the ordinance represented an unconstitutional taking. The Court focused on F.P.’s argument that the Tree Ordinance violated the Fifth Amendment’s Takings Clause, through the Fourteenth Amendment, based on the unconstitutional conditions doctrine. The court emphasized the “rough proportionality” requirement of a local ordinance, which requires a demonstrable relationship between the exactions imposed by an ordinance and the projected impact of the proposed development.

While no mathematical calculation is required, the Sixth Circuit held that a township “must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.” The Sixth Circuit held that Canton’s Tree Ordinance did not meet this burden because of (1) the Township’s lack of an adequate finding quantifying the impact of the removal and associated fees, and (2) the staleness of the formula that had not been reviewed since its passing in 2006.

Although the Sixth Circuit’s holding was limited to the Tree Ordinance as applied to F.P., the decision could potentially have broader impacts. Tree ordinances across Michigan at large bear a notable resemblance to Canton’s ordinance in this case and contain similar provisions of questionable legality. Moreover, it is indeed troubling that a government can effectively require a landowner to pay for and replace trees on his/her own property (or worse—mandate a quasi-conservation easement over his/her woodland stands) rather than the municipality shouldering such costs and/or providing compensation to the landowner.

The reasoning used by the Sixth Circuit in making its decision is largely applicable to many similar tree ordinances in effect within Michigan, which have questionable legality. A number of local ordinances were drafted years ago and have not since been reviewed, nor are they likely tailored for the type of “individualized determination” required by the Sixth Circuit inF.P. Development. As such, the rationale in this case may give landowners a sturdier leg to stand on in the future given the Sixth Circuit’s recent scrutiny of Canton’s Tree Ordinance.

Dykema will continue to monitor these issues as theF.P. Developmentopinion is interpreted and applied in Michigan and throughout the country. If you have questions about the matters raised in this alert, you may contact Stephen Estey at 248-203-0538, Alan Greene at 248-203-0757, or your Dykema relationship contact.



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