Sixth Circuit Concludes Local Tree Ordinance Constitutes an Unconstitutional Taking
A Canton, Michigan, ordinance requires landowners to obtain a permit before removing trees from their property. The ordinance further requires mitigation as a condition of receiving a tree removal permit. F.P. Development, a real-estate holding company, challenged this ordinance on several grounds, including that it constitutes an unconstitutional taking. Today, in F.P. Development, LLC. v. Charter Twp. of Canton, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit agreed.
Judge Bush wrote the opinion of the court, joined by Judges Larsen and Nalbandian. His opinion begins:
American history teems with stories and myths of trees. Johnny Appleseed’s apple trees and George Washington’s cherry tree are but a few of those timber tales that inspire and teach. Whether to plant or cut down a tree can be, for better or worse, an individual choice. But sometimes the government gets involved. For example, it can reward those who plant, see, e.g., Timber Culture Act of 1873, ch. 277, 17 Stat. 605 (granting additional land to homesteaders who planted seedlings), or compensate for land taken to conserve, see, e.g., Migratory Bird Conservation Act of 1929, 16 U.S.C. § 715 et seq. Those “carrot” measures serve to further the public interest in tree cultivation and management while compensating private parties for their property and efforts.
Here, however, the government used what F.P. Development portrays as the “stick” approach. Intending to help preserve its greenery, the Charter Township of Canton, Michigan, passed an ordinance that prohibits F.P. from removi
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