Canton Defends Tree Ordinance, Despite Legal Setbacks

CANTON, MI — Canton officials said they are working to preserve trees and green space after a federal judge ruled the township's tree ordinance unconstitutional.

The township demands a permit to remove any tree more than six inches in diameter at breast height. The tree must then be replaced with a new one, and at a greater rate for landmark trees. Tree removers are also supposed to pay the township tree fund, which was established for forest preservation and the planting and maintenance of trees, according to the township's ordinance.

"While we are disappointed in the court’s decision, we will be working to amend the ordinance to comply with the court’s ruling while still protecting the vibrancy of our community," Canton Township Supervisor Anne Marie Graham-Hudak said.

In one such move to comply with the new ruling, Canton officials said that residential property owners with more than two acres of land and commercial property owners wishing to remove trees still need to submit a tree survey. The township will then conduct an individualized assessment of the impacts caused by tree removal.

The 6th U.S. Court of Appeals in Cincinnati upheld the U.S. District Court’s 2020 ruling that Canton officials were out of line in demanding a resident plant new trees or put nearly $48,000 into the township’s tree fund after removing nearly 160 trees to help clear a clogged county drainage ditch from his property, according to court documents. Some of the trees were marked as landmarks.

The lawsuit was filed by The Texas Public Policy Foundation on behalf of the resident's company, F.P. Development, LLC. The conservative think tank also represents two brothers who were sued by the township for clearing an estimated 1,500 trees — without permission — from 16 acres they owned near Belleville and Yost roads, according to court documents. The township wanted roughly $50,000 from them for the tree fund.

A federal judge also ruled the township's tree ordinance was unconstitutional in that case as well, court documents showed. However, Canton officials said while they will not attempt to challenge the recent federal ruling at the U.S. Supreme Court, they will seek a challenge in the Michigan Court of Appeals.

Foundation attorney Rob Henneke said Canton's continued litigation of these cases is "stubborn and abusive."

"Yet they continue to fight this litigation abasing the Percy brothers, it's vindictive with malice," Henneke said.

Henneke also said Canton's continued litigation efforts forced the foundation to file a first amendment civil rights lawsuit, because the township threaten to padlock their business.

Legal debates in the cases centered on arguments pertaining to the fifth amendment, which states "nor shall private property be taken for public use, without just compensation." In other words, whether or not the township can theoretically protect privately owned trees.

Canton officials said they are not seeking the fees it sought from F.P. Development since a federal appeals panel agreed that its tree ordinance is unconstitutional, but reiterated that since the township was historically a farming community, its soil is naturally wet, and trees help to mitigate flooding and soil erosion.

"Community members want the township to be very intentional in its approach to development and to use tools like our tree ordinance to mitigate flooding and soil erosion," Supervisor Graham-Hudak said. "We are now reviewing our zoning ordinance from a broader planning perspective to ensure that we can continue mitigating flooding and soil erosion, as well as other preservation efforts."