Sixth Circuit Concludes Local Tree Ordinance Constitutes an Unconstitutional Taking

Court finds that a Canton, Michigan ordinance requiring mitigation for tree removal constitutes an uncompensated taking.

A Canton, Michigan, ordinance requires landowners to obtain a permit before removing trees from their property. The ordinance further requires mitigation as a condition of receiving a tree removal permit. F.P. Development, a real-estate holding company, challenged this ordinance on several grounds, including that it constitutes an unconstitutional taking. Today, in F.P. Development, LLC. v. Charter Twp. of Canton, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit agreed.

Judge Bush wrote the opinion of the court, joined by Judges Cole and Nalbandian. His opinion begins:

American history teems with stories and myths of trees. Johnny Appleseed's apple trees and George Washington's cherry tree are but a few of those timber tales that inspire and teach. Whether to plant or cut down a tree can be, for better or worse, an individual choice. But sometimes the government gets involved. For example, it can reward those who plant, see, e.g., Timber Culture Act of 1873, ch. 277, 17 Stat. 605 (granting additional land to homesteaders who planted seedlings), or compensate for land taken to conserve, see, e.g., Migratory Bird Conservation Act of 1929, 16 U.S.C. § 715 et seq. Those "carrot" measures serve to further the public interest in tree cultivation and management while compensating private parties for their property and efforts.

Here, however, the government used what F.P. Development portrays as the "stick" approach. Intending to help preserve its greenery, the Charter Township of Canton, Michigan, passed an ordinance that prohibits F.P. from removing certain trees on its land without a permit and requires F.P. to mitigate the removal. F.P. challenges the regulation, claiming that it constitutes a taking of its property without just compensation, an unreasonable seizure, and an excessive fine. The district court granted summary judgment to F.P. on the takings claim and to Canton on the others. We affirm.

F.P. Development's raised multiple objections to the Canton Tree Ordinance, but ultimately prevailed on one: That the ordinance imposes an unconstitutional condition on a permit to make productive use of the property under Nollan v. California Coastal Commission, Dolan v. City of Tigard, and Koontz v. St. Johns River Water Management District. Specifically, the court concludes that the mitigation requirement imposes a roughly proportional condition on the requested permit.

Here is a key portion of the court's analysis:

The parties agree that there is an "essential nexus" between Canton's "legitimate" interest in forest and natural resource preservation and the permit conditions. Therefore, we need only address the "rough proportionality" prong of Nollan and Dolan.

That prong "requires us to determine whether the degree of the exactions demanded by the [township's] permit conditions bears the required relationship to the projected impact of [F.P.'s] proposed development." Dolan, 512 U.S. at 388. The "required relationship" does not have to be "exacting," but it cannot be "generalized." It must be "rough[ly] proportional[]." Of course, "[n]o precise mathematical calculation is required, but the[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."

Canton fails to carry its burden to show that it made the required individualized determination. Under the Tree Ordinance, F.P. must replant one tree for every non landmark tree removed and three trees for every felled landmark tree. The township also requires F.P. to bear the associated costs, whether F.P. does the replanting and relocation itself or outsources the task to the township. Of course, Canton's mitigation options could offset F.P.'s tree removal, and they arguably involve some individualized assessment given that Canton must determine the number and type of trees cut. But Dolan requires more.

In Dolan, the government argued that its exaction of an easement for a bicycle pathway was necessary to reduce traffic congestion that the property owner's proposed development might cause. The Court held that the government's assertion that the conditioned path "'could offset some of the traffic demand' is a far cry from a finding that the bicycle pathway system will, or is likely to, offset some of the traffic demand." Here, the township provides us with little information about its replacement or relocation requirements. Like the government in Dolan, it seems to assume that its mitigation requirements are appropriate. And the information it presents concerning the amount of money F.P. must spend to satisfy those requirements is based on tree replacement costs calculated fifteen years ago, in 2006. That limited and arguably stale information does not suffice.

Canton has pointed to nothing indicating, for example, that F.P.'s tree removal effects a certain level of environmental degradation on the surrounding area. Nor does it demonstrate whether it considered that F.P.'s clearing of the clogged ditch on its property or its removal of dead trees may have improved the surrounding environment. The only evidence on that point suggests that even if F.P. offset its tree removal in a manner not contemplated by the township, Canton would still demand its pre-set mitigation. At bottom, Canton's support fails to get it over the bar set by Nollan and Dolan. . . .

That a representative from Canton went to F.P.'s property to count and categorize the trees F.P. cut down does not alter our conclusion. And the "individualized assessment" that Canton points to in the ordinance relates to the initial review of a permit application, not to the proportionality of the mitigation requirements. According to Canton's own representative, F.P.'s removal of regulated trees triggers the mitigation requirements, regardless of the specific impact caused by their removal. Canton has not made the necessary individualized determination here.

[NOTE: I mistakenly identified Judge Larsen as a member of the panel instead of Judge Cole. I have since corrected the post.]