MICHIGAN COURT OF APPEALS CONFIRMS CANTON TREE ORDINANCE IS UNCONSTITUTIONAL

The ruling upholds a victory by Clark Hill and the Texas Public Policy Foundation.

I was a member of the team that fought Canton Township in two lawsuits involving an ordinance that regulated the removal of trees. We won the first case in federal court and that decision was upheld by the Sixth Circuit Court of Appeals. More recently, a victory in Wayne County Circuit Court was upheld by the Michigan Court of Appeals in an opinion issued in Canton v 44560, LLC.

In that case, the Township claimed that about 1,400 regulated trees were removed and demanded that our client make over $400,000 in contributions to the Township’s tree fund. That amount exceeded the value of the property. 

The Ordinance was found to have violated the Unconstitutional Conditions doctrine, as adopted by the United States Supreme Court. “Generally, under the unconstitutional conditions doctrine, ‘the government cannot attach conditions to government benefits that effectively coerce individuals into relinquishing their constitutional rights.’” The key issue is whether the conditions are coercive or reasonable. “Primarily, the doctrine [that] developed under [two United States Supreme Court cases called] Nollan and Dolan is intended to account for two competing realities of the permitting process: (1) that inherent in this process is the opportunity for coercive government action, wherein a government can pressure an applicant to give up property—that would otherwise require compensation—in exchange for a permit; and (2) that land developments often threaten to impose costs on the public that may legitimately be offset by dedications of property.” The judicial test evolved to the following: “the government may ‘condition approval of a permit on the dedication of property to the public so long as there is a ‘nexus’ and ‘rough proportionality’ between the property that the government demands and the social costs of the applicant’s proposal.’”

Canton’s ordinance failed the test. “In this matter, requiring defendant to pay money into the tree fund commensurate with the number of trees removed from the property (the demand is linked to the parcel) has burdened plaintiff’s 16-acre parcel of land because to use the property defendant must absorb nearly half a million in fees or costs, which is more than the property’s market value. Under these circumstances, the demand for money is a taking of property without just compensation.”

The battle with Canton has involved lawsuits in both the state and federal court systems. It remains to be seen whether Canton will continue to fight or will respect the opinion of the eight judges who have ruled on its ordinance.

If you are experiencing issues with a municipality, including a tree ordinance or a zoning matter, please feel free to contact me. In addition to handling eminent domain matters, I also represent property owners in zoning matters.