Thursday, February 17, 2022

Township to continue battle for tree ordinance

Despite a recent court defeat, Canton Township officials will continue to pursue enforcement of the municipal tree ordinance.

In a prepared statement last week, Township Supervisor Anne Marie Graham-Hudak and attorney Kristin Kolb said a recent decision in the federal court system will not halt the township battle to enforce the ordinance while other litigation is pending. The township tree ordinance regulates the removal of trees from property within the township boundaries and requires the replacement or financial equivalent of trees removed. The township will continue to pursue the battle in the Michigan Court of Appeals, according to the statement.

Graham-Hudak said the township is not pursuing the mitigation fees it sought from F.P. Development since a federal appeals panel agreed that its tree ordinance is unconstitutional and the federal appellate court also denied a request to have all the judges hear the case. Any additional tree removals will be subjected to a permit fee.

“Board members reviewed the $72,439.46 spent on the F.P. Development case to date and decided not to pursue an additional appeal to the U.S. Supreme Court and to comply with the ruling of the U.S. 6th Circuit Court of Appeals,” Graham-Hudak said.

The U.S. Court of Appeals in Cincinnati decided in favor of Frank Powelson and his FP Development LLC late last year.

“(Yet) there is one outstanding court case challenging our tree ordinance, a state court case, Canton v. 44650, Inc.,” Graham-Hudak said. “We are still defending our tree ordinance in that case. There are other issues that the 6th Circuit did not decide that we believe will give the Michigan Court of Appeals a chance to rule in our favor.”

Graham-Hudak said that the tree fund is an effort to preserve green space and the ecology in the township. 

“Trees and greenspace are vital to the quality of life in our community,” Graham-Hudak said. “Trees mitigate flooding and soil erosion, produce oxygen, provide natural habitat for wildlife and contribute to an aesthetic that makes Canton a place where people want to live, work and enjoy the natural landscape.

 “While we are disappointed in the court's decision,” she continued. “We will be working to amend the ordinance to comply with the court's ruling while still protecting the vibrancy of our community.”

She added that township officials are reviewing zoning rules so the township can continue mitigating flooding and soil erosion and address other preservation needs.

The township continues to require tree surveys of residential property owners with more than 2 acres and commercial property owners wanting to remove trees. The surveys include details like species, sizes and locations for some trees, and trees to be removed. 

The Texas Public Policy Foundation, a not-for-profit entity, has been representing on a pro-bono basis Frank Powelson and his FP Development LLC, and in a separate case Matt and Gary Percy, who own ADT Transport Express and 44650, Inc.

Township regulations required Powelson plant new trees or deposit $50,000 in the township tree fund prompting the original 2018 lawsuit upheld by the appeals court. The Percys were being charged $500,000 for their removal of trees from land in the township.