Who owns that tree in your yard?
by CHANCE WELDON
Dec 26, 2018 | 1186 views | 0 0 comments | 4 4 recommendations | email to a friend | print

Who owns the trees on your property? That’s the question at the heart of a pair of lawsuits in Michigan.



The township of Canton, Michigan makes it a crime to remove any “tree” (defined as anything with a three-inch wooded stem) without a permit. But under the Township’s tree ordinance, the township will not grant such a permit unless it thinks the removal is “necessary” and the owner agrees replace the tree or “compensate” the township up to $450 for every tree removed.



That ordinance has caused real problems for Canton residents. Last summer, brothers Matt and Gary Percy cleared several acres of scrub brush and invasive species from their property in order to plant a Christmas tree farm. Despite planting over a thousand Christmas trees, the township sued the Percys for removing “trees” without a permit. The township is seeking over half a million dollars in penalties—more than the Percys’ property is worth.



The Percys aren’t alone. The township has also come after their neighbor, Frank Powelson. Mr. Powelson cleared trees and scrub-brush from a drainage ditch on his property that had become obstructed by vegetation. The obstructions were causing flooding in the neighborhood that was spawning mosquitos, killing trees, and making Mr. Powelson’s property difficult to use. Before Mr. Powelson could finish the job, however the township issued a stop-work order accusing him of violating the tree ordinance and subjecting him to potentially thousands of dollars in fines. The flood-inducing obstructions remain.



Mr. Powelson is fighting back. With the aid of the Texas Public Policy Foundation, Mr. Powelson filed a lawsuit in Federal Court alleging that the township’s tree ordinance violates the Takings Clause of the Fifth Amendment and the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. The Foundation has also stepped in to defend the Percys in state court against the township.



The gist of the cases is the same. If the government requires that you seek government permission and pay compensation to the government for using your own property, it has claimed ownership of that property. Under the Fifth Amendment to the United States Constitution, when the government claims a possessory interest in property, it has to pay the owner. Here, the township not only refuses to pay for the interest it has taken in the Percys’ and Powelson’s trees, the township claims that it is entitled to compensation because the Percys and Mr. Powelson removed their own trees. That is an unconstitutional taking.



Even if the tree ordinance is not a taking, however, the fines sought by the township under the ordinance are unconstitutionally excessive. Under the Eighth Amendment, fines must not be disproportional to the seriousness of the public injury caused by the crime. Here, the ordinance mandates hundreds of thousands of dollars in fines for private property owners that removed their own trees from their own property. To put those fines in perspective, the fine for assaulting a human being in Michigan is only $500.

There is no evidence that the Percys’ or Mr. Powelson’s removal of their trees caused any public injury whatsoever. The Percys cleared a blighted property and planted over a thousand trees. Mr. Powelson removed brush and invasive species to stop flooding on his property. If anything, the area is better off for their actions. To mandate hundreds of thousands of dollars in fines for these harmless activities is not only absurd, it is unconstitutional.



Unfortunately, the township’s ordinance is not an isolated problem. It is part of a growing trend. Cities from Michigan to Texas and everywhere in between have adopted similar laws. While these laws may have good intentions (everyone loves trees), the best intentions do not excuse abusing private property owners and trampling constitutional rights. As the Supreme Court has repeatedly reminded us, “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”



If cities want more trees, they can plant them on public land, or they can pay others to plant them on private land. But what they cannot do is take private property for what they deem to be a public benefit without paying for it. The Constitution simply does not abide that sort of theft. It is time that the courts step in to stop this growing problem.



Chance Weldon is an attorney with the Center for the American Future at the Texas Public Policy Foundation.  

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