Can a local government zoning ordinance prevent you from chopping down a historic tree? What about 1,500 ordinary trees? The latest episode of the Planet Money podcast touches on precisely this question and when such a tree regulation might “go too far” and become a taking.
The episode focuses on the 2021 case of F.P. Development, LLC v. Canton, Michigan, which held that a city’s tree ordinance violated Nollan and (primarily) Dolan because it wasn’t roughly proportional and thus it was an unconstitutional taking. The city had sought to impose an approximately half-million dollar penalty under its tree ordinance for the property owner’s felling of about 1,500 trees. Interestingly, the Sixth Circuit rejected a Loretto argument, but one has to wonder how the court might have evaluated the case under Cedar Point Nursery.
Anyway, if you are looking for a podcast to play in the car and start up a conversation about property rights with someone who doesn’t share your penchant for the Takings Clause, this is a good one to tee up.
Oh, and you’ve got to love the way the F.P. Development court starts its opinion:
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 removing certain trees on its land without a permit and requires F.P. to mitigate the removal. F.P. challenges the regulation, claiming that it constitutes a taking of its property without just compensation, an unreasonable seizure, and an excessive fine. The district court granted summary judgment to F.P. on the takings claim and to Canton on the others. We affirm.
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