It is important for municipalities to be familiar with the case of Charter Township of Canton v. 44650, Inc. when evaluating the constitutionality of tree ordinances. In this case, the Defendant, a Michigan corporation, purchased 16 acres of real property zoned “light-industrial” in Canton Township for agricultural purposes. Before the purchase, the Plaintiff, Canton Charter Township notified the seller and the Defendant’s project representative that a tree removal permit was required. The Defendant clear-cut all trees without obtaining the permit, leading to the Plaintiff discovering the violations of the Tree Ordinance.
Upon inspection, the Plaintiff estimated that the Defendant had cleared 100 landmark trees and 1,385 regulated trees. The Defendant was issued a notice of violation and asked to either replace the removed trees or pay the market value of the trees into the township tree fund. The Defendant attempted to resolve the issue informally but later planted 1,000 Norway Spruce trees without the required rezoning application or variance for agricultural use.
The Plaintiff filed a complaint alleging multiple violations of the Tree Ordinance. The Defendant denied the allegations and raised counterclaims based on constitutional grounds. The circuit court granted in part and denied in part the Defendant’s motion for summary disposition, finding the Tree Ordinance to be a constitutionally invalid regulatory taking under the Penn Central Transp Co v New York City, 438 US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978) balancing test and an unconstitutional condition on the use of property under Nollan v Cal Coastal Comm, 483 US 825; 107 S Ct 3141; 97 L Ed 2d 677 (1987), and Dolan v City of Tigard, 512 US 374; 114 S Ct 2309; 129 L Ed 2d 304 (1994). Further, the Fourth Amendment claim was deemed applicable, while the Eighth Amendment claim was found inapplicable. The circuit court also addressed the issue of collateral estoppel.
The Plaintiff appealed the circuit court’s order by right. The Court of Appeals found that collateral estoppel did not apply, as the Defendant was not a party to the prior federal action involving FP Development (another landowner within Canton Township). The Court also concluded that the application of the Tree Ordinance to the Defendant did not implicate the Fourth Amendment because the Fourth Amendment protects persons, houses, papers, and effects, and does not include trees located in an open field.
The Court further concluded that the Unconstitutional Conditions doctrine of the Takings Clause applies to the Tree Ordinance, as it demands money from the Defendant in the permitting process. The permitting condition must pass the ‘nexus’ and ‘rough proportionality’ test. Although there is a clear nexus between the conditions and the Plaintiff’s conservation interest, the Plaintiff failed to show that the conditions are roughly proportional to the impact of the Defendant’s development.
Regarding the Eighth Amendment, the Court determined that the tree fund fees serve an entirely remedial purpose, as they are designed to remedy the harms caused by tree removal based on the cost to replace the trees removed. The fees collected are used to remedy damage sustained by the public due to tree removal, making them remedial. The Defendant’s contention that the fees are at least partially punitive were not supported by sufficient evidence, and the Court determined that the Tree Ordinance’s purpose is related to the damages sustained by society rather than furthering criminal law. Therefore, the Court found that the tree fund fees are not subject to the Excessive Fines Clause of the Eighth Amendment.
This case serves as a valuable insight for municipalities to carefully evaluate their tree ordinances and ensure that they are in compliance with the constitutional requirements while preserving their conservation interests.
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John Gillooly, Editor of Gov Law, is a Shareholder in our Detroit Office. John can be reached at 313.446.1530 or jgillooly@garanlucow.com.
