March 10, 2022

Can Standing Trees Be Taken?

Posted on March 10, 2022 by Jeffrey Haynes

A recent Sixth Circuit decision holding unconstitutional a municipal tree ordinance that required mitigation or payment as a condition of tree removal has caused some consternation among municipal lawyers, who foresee the demise of tree ordinances and thus the demise of trees. But the case will likely cause only the demise of tree ordinances that lack defensible rationales for the preservation of trees.

In F.P. Development v. Canton Township, 16 F.4th 198 (2021), the Sixth Circuit reviewed a municipal tree ordinance that prohibited tree removal without a permit and required mitigation in the form of planting new trees or paying fines. For instance, to remove a “landmark” (big) tree, the ordinance required a landowner to plant three trees or pay $450 into the township’s tree fund.

When clearing its property, F.P. Development did neither; it removed 159 trees without the required permit. Upon threat of an enforcement action by the township, the owner sued under 42 U.S.C. § 1983, claiming, among other things, an unconstitutional taking under the Fifth Amendment.

The court analyzed the takings challenge under the unconstitutional-conditions doctrine: the government may not condition approval of a permit on mitigation that lacks an “essential nexus and rough proportionality” to impacts of the development. Koontz v. St. Johns River Water Management District, 570 U.S. 595, 606 (2013). The parties agreed, as they had to, that the township’s permit conditions contained an essential nexus to the township’s legitimate interest in natural resource preservation. We certainly have moved beyond a time when anyone could argue that natural resources preservation is not a “legitimate” government interest.

But under the rough proportionality test, the court found that the township failed to show that its exactions were individualized determinations of mitigation. The township failed to show any environmental degradation caused by the tree removal and did not quantify the benefits of its mitigation requirements, failing to demonstrate the methodology and functioning of its exactions.

The lesson here is that, rather than relying on the blunt instrument of governmental commands, local governments should invest time and energy in justifying and quantifying natural resource preservation and conservation benefits. For tree ordinances, government can point to the obvious and measureable benefits of trees in carbon dioxide exchange. And there are other less obvious but equally important benefits of tree preservation. For instance, ecologists and biologists can document the number and variety of insects that native trees support and therefore support the birds that prey upon them, fostering a Spring that is not silent. And trees boost the public welfare, because they measurably benefit human well-being. Tree preservation ordinances should take their cue from wetland mitigation ordinances, which usually contain detailed explanations of costs of wetland destruction and benefits of wetlands preservation. The decision F.P. Development does not mean that tree protection ordinances are moribund, but it does suggest that local governments must work just a little harder—using well-known scientific tools and knowledge—to justify and quantify mitigation of impairment or destruction of natural resources.