F.P. Development, LLC. v. Charter Township of Canton, No. 20-1447 (6th Cir. 2021)Annotate this Case
Canton’s 2006 Tree Ordinance prohibits the unpermitted removal, damage, or destruction of trees of specified sizes, with exceptions for agricultural operations, commercial nurseries, tree farms, and occupied lots smaller than two acres. If Canton issues a permit, the owner must replace removed trees on its own or someone else’s property or pay into Canton’s tree fund. For every landmark tree removed, an owner must replant three trees or pay $450. For every non-landmark tree removed as part of larger-scale tree removal, an owner must replant one tree or pay $300.
In 2016, Canton approved the division of F.P.'s undeveloped property, noting the permitting requirement. The parcels were bisected by a county drainage ditch that was clogged with fallen trees and debris. The county refused to clear the ditch. F.P. contracted for the removal of the trees and debris and clearing other trees without a permit. Canton determined that F.P. had removed 14 landmark trees and 145 non-landmark trees. F.P. was required to either replant 187 trees or pay $47,898. F.P. filed suit under 42 U.S.C. 1983.
The Sixth Circuit affirmed summary judgment for F.P. on its as-applied Fifth Amendment claim; although the ordinance, as applied to F.P., was not unconstitutional as a per se physical taking, it was unconstitutional as a regulatory taking and as an unconstitutional condition. Canton has not made the necessary individualized determination; the ordinance fails the “rough proportionality” required by Supreme Court precedent.