Sixth Circuit: Township Tree Ordinance Violates Fifth Amendment-Lexology

2021-12-06 16:08:07 By : Mr. Cartman W

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Recently, the Sixth Circuit Court of Appeals declared invalid the local tree replacement regulations, which require owners to obtain permission before removing certain trees, and to replace these trees or pay a fee to replace them. FP Development, LLC v. Charter Township, Canton, Michigan, Ring 6. No. 20-1447/1466 (October 13, 2021). The local governments of the Sixth Circuit should use this opportunity to review the provisions of their code to ensure that they do not inadvertently expose themselves to litigation under the new case law.

The Canton Township, Michigan ordinance requires owners to obtain permission before removing certain trees or shrubs. Specifically: (1) trees with a diameter of more than six inches; (2) landmark and historic trees; (3) trees with a diameter of more than three inches in the forest; (4) any under-canopy vegetation within the forest drip irrigation line.

If the owner wants to remove any trees that fall into one of these categories, they need to appoint an arborist and apply for a permit from the town. If a permit is obtained, the owner must mitigate the impact by replacing trees in other parts of the property, replacing trees in other parts of the township, or paying a fee of $300 to $450 per tree to the township tree fund.

The case started when FP Development decided to develop a weedy land in Canton, Michigan. The town conditionally approved the development application, but emphasized that FP needs an additional permit to remove any eligible trees from the property.

As the development progressed, FP discovered that the plot was separated by a county drain blocked by trees and debris. The county refused to clean the ditches, so FP hired a company to remove the trees and remove several other trees on the property. FP did not obtain these relocation permits.

The township was informed of the unauthorized logging and required the FP to either replant 187 trees in the township or deposit $45,878 into the township tree fund. FP decided to sue.

FP filed three claims against the town:

In the small victory of the township, the court rejected FP’s claim that the tree ordinance and its mitigation costs violated the Fourth Amendment’s prohibition on unreasonable seizure and the Eighth Amendment’s prohibition on excessive fines.

However, the court held that when applied to FP, the Tree Act violated the Fifth Amendment's expropriation clause, which is known as the principle of unconstitutional conditions. The principle of unconstitutional conditions is a framework used by courts to assess whether the government's licensing conditions for productive use of property are proportional to the impact of property use. Imposing conditions that are disproportionate to the influence, or lack of conditions linking the conditions to the influence, is regarded as property expropriation under the Fifth Amendment.

Here, both parties agreed that there is an important link between the protection of natural resources and the required permits, so the court turned to a "rough proportionality" analysis. This branch requires a political department to complete a personalized assessment to determine whether the requirements for permit conditions are relevant in nature and scope to the impact of the proposed action. In other words, without considering the environmental impact of each property and relocation, the city government cannot implement standardized standards for tree replacement or tree costs.

The court ruled that the township failed to conduct any personalized assessments here because its decree requires that "regardless of the specific impact of tree removal", a fee must be charged according to the formula. Therefore, the court held that the tree ordinance applicable to developers was unconstitutional.

Now is the time to review and possibly modify the municipal tree regulations to ensure compliance with FP Development. At the very least, the municipality should assess the specific circumstances and specific effects of tree removal on certain properties-a one-size-fits-all approach will no longer cut it. 

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