Two property owners in southeast Michigan won separate legal battles to stop Canton Township from enforcing its tree-protection ordinance after the owners cut down more than 1,500 trees on adjacent private lots. A new study led by a Taubman College scholar suggests municipalities must be better prepared if they want their tree-preservation ordinances to hold up in court.
Richard Norton, professor of urban and regional planning and an attorney, said there are steps local governments can take to better anticipate and safeguard themselves from the claims that their tree-protection ordinances are unconstitutional. He noted that more private property owners will likely challenge the ordinances as localities expand tree-conversation efforts given climate change and as property owners learn about cases like Canton Township.
“The outcome in Canton Township need not be experienced by other communities throughout the United States regulating trees on private property if their regulations are properly designed, administered, and defended,” Norton said.
The study, published in the Journal of the American Planning Association, is called “Who Should Pay to Protect Trees? Tree Protection, Regulatory Takings, and Unconstitutional Conditions.” Norton’s co-authors are Lee Mueller of the Davey Resource Group, Emily Palacios of Miller Johnson Attorneys, Kay Sicheneder of SavATree Consulting Group, and Mark Wyckoff of the Land Policy Institute at Michigan State University.
Trees and forests provide many benefits to property owners and society, creating shade, absorbing and cleaning stormwater, and reducing air pollutants like ozone and particulates, the study notes. Regulations to preserve trees generally take one of two forms. Public regulations address planting and maintaining trees on public lands and within rights-of-way. Tree-protection ordinances apply to private properties and regulate how trees are cared for, removed, or mitigated when removed.
Canton Township requires owners of larger private lots to obtain a permit before removing a substantial number of trees or removing individual “landmark” trees. A property owner is encouraged not to remove trees in the first place, but if they do, the owner is required to mitigate the loss by replanting trees onsite or offsite, or by paying into the township’s tree-replanting fund.
The two corporate owners of adjoining wooded parcels totaling 40 acres in Canton Township removed about 1,640 mature trees, including more than 100 “landmark” trees, without obtaining the required permits, and then refused to replant any trees. The township assessed one of the corporate owners $446,625 and the other $47,898 for the tree-planting fund, and the cases ended up in litigation — one in state court and one in federal court.
The township lost both cases, at least partially because it didn’t make a clear, specific case as to why the required mitigation was reasonable and appropriate. “Canton Township clearly accepted the importance of protecting trees through its tree-protection ordinance, but it apparently assumed that the mitigation it required was reasonable without justifying why that was so,” the study says.
Norton and his colleagues are developing research-based methods for municipalities to better justify their tree-protection ordinances. The Canton Township decisions suggest the courts will expect governments to do something more than merely specify a tree-for-tree mitigation requirement. Tree-protection ordinances should address specific kinds of environmental degradation and other potential harms that could be caused by removing trees to property owners, neighbors, and the larger community.
