Property Rights

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.

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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.]

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  1. Mandatory mitigation is the least of your worries if you try to cut down Old Man Willow.

    (For those of you who only saw the LOTR movie, think of the tree in Poltergeist)

    1. Tom Bombadil appearing for the defense.

      1. Old Tom Bombadil is a lawyer fellow
        Bright blue his coat is, and his tie is yellow
        When he was assigned to this case, Old Tom was amused
        But now he’s read the briefs, he begs to be excused
        I love the woods and fields – I mean usually
        But old Tom draws the line at a cannibalistic tree
        If Old Man Willow wants a lawyer, I know just the man
        Few have the persuasive powers of Saruman.
        He loves uprooting trees, but only the good ones
        And Old Man Willow has been evil from Day One
        And if Saruman is busy, then Dr. Seuss tells me
        There’s still another good lawyer to speak for the trees

        1. ERRATUM: replace “cannibalistic” with “man-eating”

          1. ERRATUM: replace “man-eating” with “hobbit-eating”

        2. Now my second favorite Bombadil poem, just behind The Stone Troll.

    2. I’ve only seen the LOTR movie, but I have not seen Poltergeist. My understanding is Old Man Willow was the tree in the Extended Two Towers that tried to kill Merry and Pippin, with Treebeard playing the part of Tom Bombadil

      1. You saw the extended LOTR? You must be an obsessive nerd.

        I’ve simply seen the movie, read the trilogy and the appendices, plus the Silmarillion, Unfinished Tales, The Children of Húrin, and Farmer Giles of Ham.

  2. Of course. Regulation we don’t like = taking. Hurrah!

    1. Almost all regulation is anti-scientific quackery, you Democrat.

    2. In this case it is a taking. It effectively means that after purchasing a property you still don’t own the trees on that property, and have to purchase them separately from the government

      1. Question. Since you own the air on your property, is environmental mitigtion taking? Since you own the river on your property, why cn’t you just take ll the water?

        1. If trees drifted across the landscape, this might be a sensible question.

        2. This is why I dislike environmental externalities arguments. Not because your swamp might be part of a larger swamp system cleaning water, but because it is used not to inform politicians and The People about potential legislation weighing progress vs. environmental damage, a reasonable thing for democracy, ala dumping into air or water.

          Rather it is used as a hook into lawsuits to control the situation, thus bypassing the voice of The People in making these value judgements for their own benefits (amount of pollution vs. crushing regulatory burden slowing progress.)

          One thing is certain, though. Lawyers will find a way to get megayachts either way. Hell, why not both?

        3. You don’t own the air on your property. You own the airSPACE above your property.

  3. I wonder if F.P. Development builds housing developments that ultimately have a homeowners or community association.

    The development where I live has a community association, and the collection of rules they have would make any government regulator seem meek and wimpy.

    In order to remove a planting of any kind on private (what the association calls “non-common”) property, one has to make a presentation to a bunch of busybodies on the association board. Pictures of the adjacent property and a rendition of what area will look like with the planting removed needs to be part of your multimedia presentation.

    To install a planting is even worse, the board members will look at the rendition and cock their heads and wonder aloud if some other species of planting wouldn’t blend into the community better.

    But it is all private, so I guess that it doesn’t impact my beloved freedom like dastardly government rules about plantings might. I find some solace in the fact that it is only my annoying neighbors driving me crazy.

    1. Of course it impacts your freedom. It does so to a considerably lesser degree than when the government does the same thing, however.

      The key differences are:
      1. You voluntarily consented to the homeowners association busybodies when you decided to buy that home.
      2. The homeowners association can’t enforce their petty mandates with lethal force.

  4. So every time a tree is cut down, a federal judge gets to decide whether a requirement to replace that individual tree is “appropriate” or not based on…the constitution of the United States.

    Surely the constitution provides objective legal standards permitting federal judges to neutrally guide such decisions. You just have to root through the penumbras and eminations to find them.

    1. “You just have to root through the penumbras and eminations to find them.”

      Sure, this is a well-developed branch of the law.

      1. You saw what I did there, didn’t you?

        1. He got right to the root of it.

  5. If a tree falls but nobody gets any money out of it, does it still make a sound?

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