The lawsuit filed by attorneys for Canton Township seeking to collect nearly half a million dollars in fines accrued as a violation of the township tree ordinance was dismissed by Wayne County Circuit Court Judge Susan Hubbard last week.
The township had filed suit against brothers Gary and Matt Percy who had clear-cut 1,500 trees from 16-acres of land they owned near Belleville and Yost roads in the township. According to filings by the township attorneys, the clearing was in violation of the township ordinance which requires a permit for the clearing of trees. The Percys were attempting to start a Christmas tree farm on the cleared land, according to court papers.
Hubbard ruled that attempts by Canton Township to oversee the clearing of the land were unconstitutional based on the zoning status of the property.
“There is no dispute that (they) failed to obtain a permit for clearing the subject property,” the judge said in her written opinion on the lawsuit. “Here, the removal of trees requires replacement of trees on the property, replacement of trees somewhere else, or payment into the tree fund,” Hubbard wrote. “The placement of this condition on a property zoned industrial or light industrial bears no relationship to the aesthetics of the subject property, but only provides a benefit to Canton in the form of payment or planting of trees in Canton's tree farm,” Hubbard wrote.
“The tree ordinance as applied to (the Percys) is a constitutionally invalid regulatory taking of the subject property. The Fourth Amendment claim is applicable as to a seizure of property to the extent that it is a meaningful interference with (the Percys) possessory interests.”
“As an initial reaction, we disagree with the ruling and feel it will have widespread and devastating consequences for local governments in Michigan,” said township attorney Kristin Kolb. She said that no decision on an appeal of the decision had been determined. Attorneys for the Percy brothers from the Texas Public Policy Foundation, a conservative group, said the decision could impact all property owners in the township.
“Friday was a very big win for our clients,” foundation attorney Robert Henneke said. “I think you have the clear message being sent by the court that the township of Canton was wrong.” A pending lawsuit claiming a violation of the brothers' First Amendment rights is currently in the courts. In that filing, the brothers claim the township and representatives of the township harassed them after their story was publicized in area media.
Attorneys from the same group represented F.P. Development, LLC, and owner, Frank Powelson, who sold the land to the Percy brothers, in a similar federal lawsuit against the township. According to court documents in that case, F.P. Development LLC removed about 173 trees from 24 acres of industrially-zoned property without a permit. The trees were removed, according to the court filings, in an effort to access a clogged ditch which was causing flooding. The township had levied nearly $50,000 in fines against Powelson in that incident, which was also dismissed by a federal judge. That matter is currently under appeal in the Circuit Court of Appeals in Cincinnati, OH.
A federal judge ruled the township's tree ordinance went too far and was unconstitutional in that case, which is now with the 6th U.S. Circuit Court of Appeals in Cincinnati.
