Nearby court ruling could uproot local tree ordinances

Ruling comes ‘at a time when the benefits of replacing cut trees with plantings could not be more obvious to help limit the climate crisis and manage stormwater’

By: Tiffany Esshaki | Metro | Published October 27, 2021

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METRO DETROIT — A recent court ruling in Canton Township could impact tree ordinances around the state, including those in Birmingham and Bloomfield Hills.

But officials aren’t really clear on that yet.

Judges from the Sixth Circuit Court of Appeals decided Oct. 13 in favor of a company titled F.P. Development LLC, which sued Canton Township over the constitutionality of its tree ordinance, which has been in place since 2006.

The ordinance isn’t dissimilar to some others in municipalities around Michigan, aiming to prevent tree clearing during development and construction projects, both commercial and residential. The ordinance requires tree owners to get a permit before removing trees of a certain size from their property — typically larger, more mature trees. In addition, any tree with a 6-inch diameter that’s destroyed or removed is required to be replaced elsewhere on another township property, or the owner must pay a fee to the tune of $300 a pop. Failure to do so could result in a lawsuit.

According to court documents, F.P. Development is the owner of a 62-acre parcel of undeveloped land in the township, and in 2016, filed for and was approved for a parcel split. The two parcels were split by a county-owned drainage ditch that had become clogged with fallen trees and brush. The county refused to clear the ditch, and F.P. Development hired a timber company to remove the trees — but obtained no permit.

Long story short, Canton Township put the kibosh on the work until F.P. Development was in compliance with the ordinance. In this case, they had to replant 187 trees on their or another’s property, or to cut a check to Canton Township’s tree fund for $47,898.

The company did neither and took the municipality to court, claiming the ordinance violated the company’s Fifth and Fourteenth Amendment rights of unreasonable seizure, along with violations of its Eighth Amendment rights protecting it from excessive fines. The township filed a counterclaim seeking the nearly $50,000 in damages.

Affirming a lower court’s opinion, the Sixth Circuit Circuit deemed the ordinance not to be an unreasonable seizure or excessive fine, but it did affirm that it represents an unconstitutional regulatory taking.

Canton Township administrators did not respond to a request for comment before press time.

Since the ruling was made relatively recently, many other municipalities haven’t been able to review how it would impact their own tree ordinances.

In Birmingham, two tree ordinances are in effect: the tree preservation ordinance, largely protecting publicly owned trees from being damaged or removed as part of private development, and the Birmingham zoning ordinance that not only prevents trees from being removed without replacement, but also dictates the minimum number of trees that should be included as part of a construction build, based on the type of property; e.g. mixed-used, residential, parking, etc.

Trees 6-inches in diameter or higher that are removed are to be replaced with three new deciduous trees. Any evergreen more than 10-feet tall is to be replaced by two new evergreens. New replacements are to be planted within a month of removal April-September. If the violation is issued during winter months, replacements need to be in the ground no later than the ensuing May 31.

Birmingham City Attorney Mary Kucharek did not respond to the Eagle before press time about how the Canton Township decision might impact Birmingham’s ordinances, but Birmingham Communications Director Marianne Gamboa said they were already evaluating the standing ordinance.

The woodlands ordinance in Bloomfield Hills is relatively fresh, having just been passed in 2012 after a lengthy process of weighing property owners’ rights against protecting the city’s tree canopy from mass clearing.

“I think this tree ordinance, through its evolution, has finally reached a balance. I’ve been quite engaged in the development of this ordinance, and I can attest that there was attention given at each step,” said Commissioner Michael Dul, a landscape architect who had been newly elected to the commission when the ordinance was passed in June of 2012. “It’s very relaxed compared to our peers in Bloomfield Township, Rochester Hills and Franklin.”

Bloomfield Hills allows for the removal of any number of trees under 8 inches in diameter, four trees greater than 8 inches in diameter within a 2-year period, or 10% of the trees on a lot. More than that, a permit needs to be obtained, and in some cases, trees replaced.

“I am aware of the Sixth Circuit Court ruling on the Canton Township case. Because of the ruling, we will be assessing our ordinances from a legal standpoint and let any additional appellate proceedings play themselves out before taking action,” said Bloomfield Hills Manager David Hendrickson in an email.

In Bloomfield Township, a permit is required for removing any tree 8 inches in diameter or larger, or of a certain height or age. Replacements need to have at least a 1-year warranty, and there are numerous stipulations as to which kinds of trees can be used for replacement, including ones that satisfy the standards of the American Association of Nurserymen.

Once attorneys review their municipality’s ordinances and whether they comply with the new court standard, it’s possible tree preservation laws across the state could be loosened. That’s the fear, according to the Michigan Environmental Council.

“We are disappointed that the court has ruled against Canton Township without undergoing what we believe would constitute a full analysis of the required tests under current Supreme Court rulings,” Sean Hammond, the policy director at the Michigan Environmental Council, said in a prepared statement. “This ruling puts other tree protection ordinances across the state at risk. At a time when the benefits of replacing cut trees with plantings could not be more obvious to help limit the climate crisis and manage stormwater, communities now must worry that these types of protections are regulatory takings instead of sensible measures to defend the public good.”