Local Government Law Bulletin November 23, 2021 Ross A. Leisman

Township Tree Ordinance Found Unconstitutional

On October 13 the United States Court of Appeals for the 6th Circuit issued an opinion finding that Canton Charter Township’s Tree Ordinance, which required landowners to obtain a permit before removing a tree and required mitigation as a condition of receiving a tree removal permit, was unconstitutional. The Township ordinance required that a tree owner agree to mitigate any tree removal by replanting one to three trees on their own property or other property, or pay $300-$450 into the Township’s tree fund for each tree. The Plaintiff in the case, F.P. Development, LLC (F.P.), owned a parcel of land which contained a county drainage ditch that had become clogged with fallen trees and debris. F.P. contracted with a timber company to remove the trees and debris, but did not apply for or receive a permit from the Township. The Township inspected the property and determined that F.P. had removed 159 trees and that it was required to either replant 187 trees or deposit $47,898 into Canton’s tree fund. Rather than paying or replanting, F.P. filed a lawsuit challenging the Tree Ordinance.

In a nod to history buffs, the Court of Appeals noted in its opinion that on April 13, 1772, almost two years before the Boston Tea Party, a group of colonists revolted against the Crown’s longstanding Pine Tree Act. This Act prohibited colonists from cutting down white pine trees on their own land without first obtaining a royal license and subjected violators to fines that grew with the size of the tree felled. The colonists ignored the Act, and a group of disgruntled tree owners captured the British representatives, beat them with switches, maimed and shaved their horses, and ran them out of town.

More seriously, the Court of Appeals found that the Township failed to carry its burden that there was an “essential nexus” between the Township’s legitimate interest in forest preservation and the permit conditions. The Court held that the standard replant of one tree for every non-landmarked tree removed and three trees for every felled landmark tree, and requiring the landowner to bear the associated costs, and/or make a payment for each tree, did not meet even a rough proportionality between the impact on the tree owner and the benefit to the environment. For example, the Court noted that removing the trees that were clogging the drainage ditch may actually have improved the surrounding environment.

The F.P. Development, LLC v Charter Township of Canton opinion does not automatically invalidate all tree preservation ordinances. It does make clear, however, that mitigation requirements must be reasonable, proportional, and are subject to review by the courts.

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