Constitutionality of a Municipal Tree Ordinance
Many municipalities have enacted local tree ordinances that must be taken into consideration prior to new construction. These ordinances are usually permit driven and require approval to remove trees from one’s property. The ordinances typically involve some classification scheme of trees by either size or species. They may also impose obligations to plant replacement trees to offset the trees lost during construction.
The validity of a local tree ordinance was challenged in F.P. Development, LLC v Charter Township of Canton, 16 F.4th 198(2021). F.P Development purchased property adjacent to its existing site for expansion of its operations. Prior to construction, 159 trees were removed from the site. No permit was obtained prior to removal as required by the township’s Forest Preservation and Tree Clearing Ordinance. The Township learned of F.P.Development’s actions and issued a stop work order. After completing an investigation confirming the number of trees that had been removed, the Township gave F.P. Development the option of either planting replacement trees or depositing a rather large sum of money into the Township’s Tree Fund. F.P. Development did neither and filed suit challenging the validity of the Township’s ordinance.
F.P. Development claimed that the Township’s Tree Ordinance constituted a violation of the Takings Clause of the Fifth Amendment. The Takings Clause states that “private property” shall not “be taken for public use, without just compensation.” The district court held that the ordinance did violate the Takings Clause. The Court of Appeals agreed.
The court believed the Township’s effort to justify the detrimental effects of tree removal fell short of the threshold need to avoid a taking. The Township’s had asserted that the permit conditions “could” offset some of the harm caused by tree removal. The court pointed out that was different then asserting the harm “will, or likely to” offset the conditions. To meet constitutional scrutiny, permits issued by the Township needed to bear some relationship to the impact of the proposed development and furthermore, there must be some proportionality in the mitigation requirements. The ordinance’s mitigation requirements were set in stone and did not take into account the actual impact of the removal of the trees. Conclusory assertions of a general impact are not sufficient. There must be some individualized determination of the actual impacts to the site.
The holding in F.P. Development doesn’t appear to be the axe that sends tree ordinances to the mulch pile however. It does mean that governmental entities will have to do a better job of demonstrating how removal of trees causes harm to the surrounding area on an individualized basis. Canton Township used a broad justification to support its ordinance claiming its purpose was to promote an increased quality of life through regulation of trees. In contrast to Canton Township, the tree ordinance for Grand Rapids Michigan provides eleven specific factors that its ordinance is designed to address.
The benefits of trees are well known. The Food and Agriculture Organization of the United Nations has identified numerous benefits associated with the presence of trees such as increased property values, removal of carbon dioxide and improvements to water quality. An ordinance that weaves the known benefits of trees into its statutory framework and applies them to an individual piece of property would appear to address the deficiencies noted by the F.P. Development court.