Who Should Pay to Protect Trees

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In this Thursday episode of Talking Trees, we examine one of the most contentious questions in urban arboriculture: who should bear the cost of protecting trees? Focusing on legal and planning frameworks in the United States, the episode explores how local tree protection ordinances can spark conflict between environmental goals and private property rights.

We discuss:

• The concept of regulatory takings and its legal implications for tree protection
• The case of Canton Township and its failed legal defence of mitigation fees
• The risks of poorly designed or overly rigid tree ordinances
• How municipalities can create more balanced, defensible policies that benefit both the public and property owners
• Ethical considerations in distributing the responsibilities and costs of environmental stewardship

This episode offers a thought-provoking look at the intersection of law, urban planning, and tree protection policy.

Background information:

• Who Should Pay to Protect Trees Tree Protection Regulatory Takings and Unconstitutional Conditions.pdf

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Chapters

• 0:00 Introduction to Tree Protection Ordinances
• 1:50 Canton Township Case Background
• 4:50 Constitutional Challenges Explained
• 8:10 Legal Implications for Tree Protection
• 11:15 Practical Steps for Arborists
• 12:30 Final Thoughts and Key Question

Transcript

Roger: 0:02

Talking Trees with Lillian Jadd. Welcome to Talking Trees. Today we examine a study on the legal and ethical dimensions of tree protection within urban planning. The article analyzes two legal cases in Canton Township, michigan, where local tree protection ordinances were struck down due to constitutional and regulatory concerns. It discusses the allocation of costs for tree protection. Protection ordinances were struck down due to constitutional and regulatory concerns. It discusses the allocation of costs for tree protection, balancing private property rights with community interests, and offers recommendations for designing legally sound and effective tree protection policies.

Jad: 0:41

Hey everyone, welcome back. You know we've got a lot of arborists in our audience and today we're diving into something you guys deal with all the time Tree protection ordinances.

Lilly: 0:52

Yeah.

Jad: 0:52

And they're only becoming more important, especially with climate change and everything. But of course you always have that tension between what's good for the whole community and what property owners feel like they have the right to do on their own land.

Lilly: 1:06

Absolutely. And that tension, that balance, is at the heart of some pretty interesting legal battles that have been playing out recently, and we're going to break down one of these cases in Canton Township, Michigan that has some pretty big implications for all of us thinking about tree protection.

Jad: 1:21

All right. So before we get into all the details of that case, let's just start with the basics. You know what are tree protection ordinances, what do they usually cover? I mean, you're out there working in the field, you see this firsthand.

Lilly: 1:32

Right. So most of these ordinances they're really focused on what happens on private property, especially when it comes to removing trees and you know particularly landmark trees, those ones that really stand out in the landscape. And these ordinances they often have rules about mitigation too, so like if you take down a tree you might have to plant a new one or pay into some kind of fund to help with replanting later on.

Jad: 1:55

Makes sense. So it's not just about like trees on public land. This applies to my backyard too.

Lilly: 2:00

Exactly. We have rules about public trees and street trees, but this kind of ordinance, the tree protection ordinance that we're talking about today, it applies to private land and, just to be clear, these ordinances are everywhere. Lots of communities have them, almost every community, and usually they're based on good intentions. Trees provide a ton of benefits Shade, stormwater control, they help clean the air, it's good for property owners and it's good for the community as a whole. But, as I said before, the devil's in the details, and that's where Canton Township ran into a bit of trouble.

Jad: 2:32

So let's talk about Canton Township Set the scene for us. What was their ordinance like and how did these two cases that we're talking about today FP Development and this company 44650 Inc how did they end up in court?

Lilly: 2:44

So Canton Township they adopted this tree protection ordinance back in the early 2000s. Pretty standard stuff. You needed permits if you were going to remove a certain number of trees, especially landmark trees again, and then, you had those mitigation requirements that we were talking about before.

Lilly: 3:00

Now, these two cases that we're going to look at involved properties that were right next to each other. So FB Development they own 40 acres. They split it up. They sold 16 of those acres to 14 Wani 650 Inc and both of them both companies knew about the ordinance, but for 4650 Inc they just went ahead and clear cut their entire 16 acres, no permit.

Jad: 3:20

No, no permit, they just went for it.

Lilly: 3:22

They did, just completely ignored the rules.

Jad: 3:24

How many trees are we talking about here?

Lilly: 3:25

Oh, we're talking about an estimated 1,485 mature trees, and within that there were about 100 landmark trees.

Jad: 3:33

Wow.

Lilly: 3:34

Just gone.

Jad: 3:35

So it wasn't just them, though, right.

Lilly: 3:36

No FP Development. They also removed about 159 regulated trees, including 14 landmark trees, and again without a permit.

Jad: 3:45

So I imagine the township came down on them pretty hard then.

Lilly: 3:48

They did. They issued some pretty significant fines for not getting the permits and not doing anything to mitigate the tree removal. So for 44650 Inc the fine was $446,625. And for FP Development it was $47,898. If you do the math it works out to roughly $300 per tree.

Jad: 4:08

Oof, that's a lot of money.

Lilly: 4:09

It is. It's a hefty price to pay for not following the rules, but these companies, they refuse to pay.

Jad: 4:15

Really.

Lilly: 4:15

Yeah, and that's where things got really interesting. Both of them decided to take the township to court, and they argued that the ordinance itself was unconstitutional.

Jad: 4:23

Okay, so now we're getting into the legal weeds here. What was their argument? Exactly? What made them think that the ordinance was unconstitutional?

Lilly: 4:30

Well, their main argument was that this ordinance, it violated their property rights, and they said that, by imposing all these requirements and these big fines, the township was essentially doing what they call a regulatory taking of their property.

Jad: 4:42

Regulatory taking. For those of us who don't spend all day reading law books, what does that mean?

Lilly: 4:46

Well, in simple terms, a regulatory taking means that the government is limiting your use of your own property so much that it's almost like they've taken it from you, even though legally, you still own it. And in this case, the companies argued that the township was doing this this regulatory taking without giving them what's called just compensation, and that's a big no-no according to the Constitution.

Jad: 5:09

So they felt like the township was overstepping its boundaries as far as property rights are concerned. But you said before that they knew about this ordinance when they bought the land, right.

Lilly: 5:18

They did, but they argued that a specific part of the ordinance was unfair Right and, the way they saw it, it created what's called an unconstitutional condition.

Jad: 5:27

OK, here we go. This sounds complicated. Unconstitutional condition what is that and what does it mean for all of us out there working with trees?

Lilly: 5:35

So basically it means that the government can't make you give up a constitutional right, like your property rights, in exchange for a permit. They can't say, hey, we'll give you this permit but only if you agree to give up this other right that you have. And there are a couple of legal tests to determine if that's happening. One's called the essential nexus test and that just means is there a clear connection between the condition they're putting on the permit and the potential harm? The other test is called rough proportionality and that means is what they're demanding as mitigation? Is it roughly in line with the actual harm that was caused?

Jad: 6:13

So the property owners are saying that the township's mitigation requirements, like replaying the trees or paying into that fund, they're saying that that didn't pass these tests.

Lilly: 6:22

Right. Essentially, they were saying hey, you're asking too much.

Jad: 6:25

But how did the courts see it? Do they agree with the property owners?

Lilly: 6:28

Well and this is where it gets really interesting and potentially concerning for you guys, the arborists out there the lower courts they initially actually sided with the township, but when these cases went up on appeal, things started to change. The higher courts they focused in on this unconstitutional condition argument and in the end they actually sided with the property owners.

Jad: 6:49

So hold on the property owners who just clear cut their land without even getting a permit. They won they did. Why? I mean, what was the court's reasoning, what was their logic there?

Lilly: 6:58

Well, they decided that Canton Township's ordinance. It didn't properly demonstrate what's called rough proportionality in its mitigation requirements. So that whole tree for tree replacement idea, the court said it wasn't individualized enough, it wasn't specific enough to the situation and the township. They didn't really prove with solid data that what they were demanding as mitigation was directly linked to the harm caused by removing those specific trees.

Jad: 7:24

So it's like their ordinance had good intentions, but when it came down to it, they couldn't really back up those requirements.

Lilly: 7:30

Right. They couldn't demonstrate the value of the trees and the specific harm caused by getting rid of them.

Jad: 7:35

But this isn't just about Canton Township, is it? These rulings could have implications for tree protection ordinances all over the country, right?

Lilly: 7:43

Oh, absolutely. This isn't just a local issue. These cases have really sent shockwaves through, I think, the whole world of environmental law. They show just how important it is for communities to be very careful and very thorough in how they create and enforce their tree protection ordinances. And, honestly, that's where you guys, the arborists, come in. You're the experts, you have the knowledge to help these communities get this right.

Jad: 8:12

So let's dig into those implications then. What are the lessons we can learn from these Canton Township cases, and what can arborists do to make sure that tree protection efforts are both effective but also hold up legally All right? So these court cases have the potential to really change how we approach tree protection, and it's not just some abstract legal debate. For you as arborists, this directly affects your work.

Lilly: 8:31

Yeah, definitely.

Jad: 8:32

So let's talk about what those implications are. What can we actually learn from these cases?

Lilly: 8:36

Well, one of the big takeaways here is that just having good intentions isn't enough, right, we need solid data. Okay, we need good methods to support those tree valuations and those mitigation requirements. You know communities need to be able to show in very concrete terms why their tree protection measures are justified.

Jad: 8:55

So you can't just say trees are good, we need to protect them, we have to actually be able to put some numbers behind that right.

Lilly: 9:01

Exactly, and there are a few key areas where more research could make a big difference. First of all, we need better ways to assess tree canopy cover. We need to know not just how many trees we have, but you know what kinds of trees they are, where are they located and how do they actually contribute to the health and well-being of the community as a whole.

Jad: 9:21

It's like we have to understand the whole forest, not just look at individual trees. That's right. As an arborist, I can see how that kind of detailed assessment it's really valuable. What else should we be focusing on?

Lilly: 9:33

I think another really important area is developing better methods for calculating the actual benefits of mature trees, both in economic terms, but also ecologically. What's their impact on things like stormwater runoff, air quality, energy use, even property values? You know? We need to be able to actually put a dollar figure on those benefits and show how removing trees leads to real losses, losses that you can measure.

Jad: 9:59

Yeah, I imagine that's pretty complicated. I mean, are there any tools out there that can help with that kind of assessment?

Lilly: 10:04

Yeah, there are definitely some promising tools available, like iTree, for example. I'm sure a lot of you are familiar with that one. It's been used to assess the benefits and the risks associated with trees in urban areas. But I think we need to keep refining those tools, make sure they can really meet the needs of legal cases like these ones in Canton Township.

Jad: 10:23

Because the courts, they want hard data.

Lilly: 10:26

Right. They want evidence, hard evidence.

Jad: 10:28

And we need to be able to give it to them.

Lilly: 10:30

And you know every site is different. You can't have this one size fits all approach.

Jad: 10:34

Right.

Lilly: 10:35

So how do we factor in all of those site specific conditions?

Jad: 10:38

That's a good point. You know the soil, the drainage patterns, the plants that are already there.

Lilly: 10:43

Right.

Jad: 10:43

Even what they're planning to build there in the future. All of those things can affect whether or not you can successfully replant trees.

Lilly: 10:49

Exactly, and so we need to move away from that rigid tree for tree replacement idea and recognize that mitigation. It needs to be tailored to the specific site.

Jad: 11:00

Okay, but research takes time, yeah. So in the meantime, what can arborists do right now to make sure trees are protected in their communities? What are some practical steps?

Lilly: 11:13

Well, I'd say first and foremost, get familiar with your local tree protection ordinance. Okay, you know, really understand what it says, what its strengths and weaknesses are, and think about how it could be better, based on everything that we've been talking about today.

Jad: 11:25

Okay, so step one know the rules Right. What's next?

Lilly: 11:28

Well, the next thing is, you know. Connect with your local planning department, your elected officials. These are the people who make the decisions Right. They need to hear from experts like you know. Share your knowledge, explain why trees are important and encourage them to improve the ordinance. You know. Push for better data collection, those individualized assessments, more flexible mitigation strategies.

Jad: 11:51

Make sure they understand what happened in those court cases. We were talking about building those relationships and making your voice heard.

Lilly: 11:56

Yeah, and don't underestimate community engagement.

Jad: 12:00

Right.

Lilly: 12:00

You know. Teach your neighbors about the benefits of trees and why we need to protect them. Organize tree planting events, volunteer and really push for the creation of a tree board or a commission in your town.

Jad: 12:12

Yeah.

Lilly: 12:12

Because the more people that understand and care about the urban forest Right, the easier it'll be to get these strong tree protection measures in place.

Jad: 12:20

Sounds like a multi pronged approach. Yeah, knowledge advocacy, community engagement. We can actually make a difference on this issue. But before we wrap up, let's zoom out a little bit. What are some of the bigger takeaways from all of this? For our listeners, okay, and as we send them back out into the field, what's one question you really want them to be thinking about?

Lilly: 12:39

All right, here's one for you to ponder how can we, as a society, balance the urgent need to protect trees which is even more important with climate change and everything with individual property rights, in a way that is both fair and sustainable? It's a tough one. There's no easy answer.

Jad: 12:57

It's a really good question and one that I hope all of our listeners will keep thinking about. Thanks for joining us for this deep dive into the world of tree protection.

Lilly: 13:04

It's been a pleasure.

Jad: 13:05

And, as always, keep those trees standing tall.

Roger: 13:11

Thank you for joining us Today. We discussed the legal and ethical challenges of tree protection in urban planning, reviewing two legal cases from Canton Township, michigan, where tree protection ordinances were invalidated over constitutional and regulatory concerns. We examined issues around cost allocation, balancing private rights with community interests, and proposed recommendations for developing effective, legally sound policies. We appreciate your attention and look forward to our next discussion.