Constitutional Law: Make Sure Your City’s Regulations Don’t Bark Up the Wrong Tree

By Sam Ketchum and Joe Sathe

We Minnesotans love our trees almost as much as we love our loons, the State Fair, and our sports teams. This love sometimes translates into laws, such as local tree preservation requirements.

Last October, a Michigan town’s tree preservation ordinance was the center of a decision by the 6th U.S. Circuit Court of Appeals in F.P. Development, LLC v. Charter Township of Canton, Michigan, 16 F. 4th 198 (6th Cir. 2021).

While Minnesota is in the 8th Circuit, where the impact of this decision is unclear, the decision provides insight on the constitutional limits of all local tree regulations. If your city has or is considering tree regulations, you should ensure they don’t, well, bark up the wrong tree.

Canton decision summary

Canton’s ordinance classified certain trees as “significant trees,” created permitting requirements, restricted tree removal, and required mitigation for removal. A property owner that removed trees was required to either pay into a town fund or replant trees.

The town’s legal problems began after it brought an enforcement action against a developer that removed 159 trees. The town argued that, under its ordinance, the developer was required to either replant trees or pay the town approximately $50,000.

The developer sued the town and alleged that the ordinance was (1) an unconstitutional taking under the Fifth and 14th Amendments, (2) an unreasonable seizure under the Fourth and 14th Amendments, and (3) an excessive fine under the Eighth and 14th Amendments.

After a district court decision and appeals, the 6th Circuit determined that Canton’s ordinance violated the Fifth Amendment’s “unconstitutional conditions” doctrine. Under the doctrine, local government permitting may be found unconstitutional if a permit is conditioned on the waiver of constitutional rights.

Additionally, while local governments may choose whether and how a permit applicant mitigates developmental impacts, they are prohibited from enforcing requirements that “lack an essential nexus and rough proportionality to those impacts.”

The judge concluded that the town’s enforcement of its mitigation requirement was not proportional and, therefore, was an unconstitutional condition. He stated that the town was required to “make some sort of individualized determination that the required [mitigation] is related both in nature and extent to the impact of the proposed development.”

So, what’s an “individualized determination?” The 6th Circuit noted that Canton’s required payment was based on outdated calculations. It also noted that the town did not demonstrate that the specific tree removal would cause environmental degradation or improve the surrounding environment.

This suggests that the town was required to consider site- and tree-specific factors. Practically speaking, a local government’s ability to consider and document such factors may be a barrier to enforcing local tree regulations.

Tree regulations under Minnesota law

Again, it’s unclear exactly how the Canton decision impacts Minnesota. The 8th U.S. Circuit Court of Appeals and Minnesota state courts have not addressed this issue. But the case received national attention and provides insight into the constitutional limits of local government permitting, especially regarding tree regulations.

Also, Minnesota courts have dealt with other tree issues. For example, the Minnesota Supreme Court has upheld the denial of a subdivision plat on the basis that the project would threaten vegetation on the lot and surrounding property, increase the possibility of disease and wind damage, and disrupt wildlife habitat. The Minnesota Supreme Court has also determined that townships must provide due process prior to removing trees from a public right of way.

In addition, Minnesota statutes authorize and limit local governments’ involvement with trees. State legislation permits local regulations to address “vegetation” and “ecologic features.” This legislation has generally been cited to support local tree regulation.

Minnesota statutes also provide requirements for certain tree removal on public rights of way. And local governments generally have authority to manage trees on public property, such as parklands.

Takeaways

Local tree regulation is complex and implicates some constitutional issues. While the Canton decision likely doesn’t invalidate your local tree regulations, it also doesn’t mean they won’t face a similar legal challenge.

Cities should carefully consider enforcement of any tree regulations. For example, they may want to ensure that any mitigation requirement is proportional to the specific site and that any individual determination for mitigation is well-documented.

Finally, local governments should consult their legal counsel, staff, and consultants about what is appropriate before enacting or modifying their tree regulations.

Sam Ketchum and Joe Sathe are attorneys at the law firm of Kennedy & Graven, Chartered (www.kennedy-graven.com). Kennedy & Graven is a member of the League’s Business Leadership Council (www.lmc.org/sponsors).