Check out the U.S. Court of Appeals' opinion in F.P. Development, LLC v. Charter Twp. of Canton, No. 20-1147 (Oct. 13, 2021), in which the court affirmed the district court's grant of summary judgment to the property owner on its unconstitutional conditions takings claim.
Short story: Canton's tree ordinance prohibits property owners from removing trees on their land without Canton's permission, and also requires owners to either replace any trees removed, or pay between $300 - $450 into the tree fund.
In the course of developing its property, the owner cleared a county drainage ditch of trees and debris after the county refused to do so. But it didn't get a permit, "someone" dropped dime, and Canton issued a NOV.
The owner sued, alleging all theories of takings: (1) a per se Horne-type taking, (2) a regulatory Penn Central taking, and (3) an unconstitutional conditions Nollan/Dolan taking. After going into the historical background of trees (see slip op. at 7-8 if that floats your boat), and acknowledging the parties' agreement that the ordinance did not offend Nollan's "essential nexus" test, the court concluded that the exaction (plant three trees for every "landmark" tree removed and one tree for every plain-old boring unlandmark tree removed) lacked Dolan rough proportionality. Or, more technically, that Canton had not met its burden of showing that the ordinance was roughly proportional to any actions the owner took.
Canton has pointed to nothing indicating, for example, that F.P.’s tree removal effects a certain level of environmental degradation on the surrounding area. Nor does it demonstrate whether it considered that F.P.’s clearing of the clogged ditch on its property or its removal of dead trees may have improved the surrounding environment. The only evidence on that point suggests that even if F.P. offset its tree removal in a manner not contemplated by the township, Canton would still demand its pre-set mitigation. At bottom, Canton’s support fails to get it over the bar set by Nollan and Dolan. See id. at 395–96 (noting that “the city must make some effort to quantify its findings in support” of its exactions); see also Goss v. City of Little Rock, 151 F.3d 861, 863 (8th Cir. 1998) (holding that local traffic mitigation requirements did not satisfy Dolan’s rough-proportionality test because they were based on pre-set assumptions, rather than an individualized impact assessment).That a representative from Canton went to F.P.’s property to count and categorize the trees F.P. cut down does not alter our conclusion. And the “individualized assessment” that Canton points to in the ordinance relates to the initial review of a permit application, not to the proportionality of the mitigation requirements. See Canton Code of Ordinances Art. § 5A.05(F). According to Canton’s own representative, F.P.’s removal of regulated trees triggers the mitigation requirements, regardless of the specific impact caused by their removal. Canton has not made the necessary individualized determination here.
Slip op. at 10-11.
F.P. Development, LLC v. Charter Twp. of Canton, No. 20-1447 (6th Cir. Oct. 13, 2021)
