Charter Twp. of Canton v. 44650, Inc.
| Decision Date | 13 April 2023 |
| Docket Number | 354309 |
| Parties | CHARTER TOWNSHIP OF CANTON, Plaintiff/Counterdefendant-Appellant/Cross-Appellee, v. 44650, INC., Defendant/Counterplaintiff-Appellee/Cross-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Wayne Circuit Court LC No. 18-014569-CE
Before: CAMERON, P.J., and JANSEN and BORRELLO, JJ.
In this dispute involving the constitutionality of the Charter Township of Canton Zoning Ordinance, § 5A.00, titled "Forest Preservation and Tree Clearing Ordinance" (hereinafter, "Tree Ordinance" or "Ordinance"), plaintiff, Canton Charter Township appeals by right, and defendant, 44650 Inc., cross-appeals the opinion and order granting in part and denying in part defendant's motion for summary disposition under MCR 2.116(C)(10). In so ruling, the circuit court found that the Tree Ordinance, as applied to defendant, violated the Fourth Amendment of the United States Constitution, U.S. Const, Am IV, as an unreasonable seizure and violated the Takings Clause of the Fifth Amendment of the United States Constitution, U.S. Const, Am V, and Mich. Const 1963, art 10 § 2 (Michigan's Takings Clause) as an unconstitutional condition, a physical categorical taking under Horne v Dep't of Agriculture, 576 U.S 350; 135 S.Ct. 2419; 192 L.Ed.2d 388 (2015), and as a noncategorical taking under the ad hoc balancing test of Penn Central Transp Co v New York City, 438 U.S 104; 98 S.Ct. 2646; 57 L.Ed.2d 631 (1978). The circuit court otherwise rejected defendant's claim that the Tree Ordinance, as applied to defendant, amounted to the imposition of a penal fine under the Excessive Fines Clause of the Eighth Amendment of the United States Constitution, U.S. Const, Am VIII.
On appeal, plaintiff argues that (1) collateral estoppel bars consideration of defendant's Fourth Amendment claim on the basis of litigation between it and FP Development (another landowner within Canton Township), see FP Dev, LLC v Charter Twp of Canton, Mich, 16 F4th 198 (CA 6, 2021), reh en banc den FP Dev, LLC v Charter Twp of Canton, Mich, unpublished order of the United States Court of Appeals, Sixth Circuit, entered January 3, 2022 (Nos. 201447/1466), and, alternatively, the circuit court erred because the Fourth Amendment is not applicable to the Tree Ordinance as applied to defendant; (2) the "unconstitutional conditions doctrine" of Nollan v Cal Coastal Comm, 483 U.S. 825; 107 S.Ct. 3141; 97 L.Ed.2d 677 (1987), and Dolan v City of Tigard, 512 U.S. 374; 114 S.Ct. 2309; 129 L.Ed.2d 304 (1994), is inapplicable as a threshold matter because this case does not involve a dedication of real property as a condition for a land-use permit; and (3) the circuit court erred by finding a categorical physical taking under Horne and a regulatory taking under Penn Central. On cross-appeal, defendant contends that the circuit court erred by finding that the Tree Ordinance's tree fund fees are remedial, such that the Excessive Fines Clause of the Eighth Amendment is inapplicable.
We reverse, in part, the circuit court's summary disposition order with respect to the Fourth Amendment claim. We affirm, in part, with respect to the takings claims under the unconstitutional conditions doctrine and the Excessive Fines Clause claim under Eighth Amendment. This renders discussion of defendant's remaining takings claims unnecessary.
Defendant, a Michigan corporation whose resident agent is Gary Percy, is the owner of 16 acres of real property zoned "light-industrial" located in Canton Township. At the time of the parcel's purchase for $404,250 in August 2017, the property was surrounded on all four sides by industrial or commercial developments, including an adjacent parcel defendant owns and uses in its trucking business. Defendant intended to use the property for agricultural uses.
Before defendant's purchase, the property was part of a larger 40-acre parent parcel owned by FP Development (FP). A month before the conveyance, and as part of the application for the parcel split, plaintiff notified FP's and defendant's project representative via letter that a tree removal permit was required before any tree removal.
When the property was deeded to defendant, it was vacant and fully treed. Allegedly, the property was overrun with Ash and Buckthorn trees, invasive species subject to removal under state law, and had been used as a dumping ground for trash and debris. In October 2017, after issuance of the warranty deed, defendant clear-cut all the trees from the property and removed the existing stumps. Defendant did not obtain a tree removal permit.
Plaintiff first became aware of the tree removal six months later, in April 2018, when plaintiff's Township Landscape Architect and Planner, Leigh Thurston, received a call inquiring why so many trees were permitted to be removed from the subject property. Thurston viewed the property from a neighboring parcel and noted multiple violations of the Tree Ordinance.
The Tree Ordinance, subject to certain exceptions, requires a permit for the removal or relocation of any tree with a diameter at breast height (DBH) of six inches[1] or any "landmark" tree.[2] Tree Ordinance, § 5A.05(A). A tree removal permit will be granted under the Tree Ordinance if plaintiff determines that the removal is "necessary" for the site improvement and no reasonable alternative exists, where the tree is dead or diseased, or where removal is consistent with good forestry practices. Tree Ordinance, § 5A.05(F)(4). The purpose of the Tree Ordinance "is to promote an increased quality of life through the regulation, maintenance and protection of trees, forests and other natural resources." Tree Ordinance, § 5A.02. To this end, § 5A.08 requires relocation or replacement of trees upon their removal; in particular, the Tree Ordinance requires replacement of landmark trees on a 1 to 3 ratio and replacement of other regulated trees on a 1 to 1 ratio.
Generally, the Tree Ordinance dictates that replacement trees must be located on the same parcel of land on which the activity is to be conducted. Tree Ordinance, § 5A.08(E). Where tree relocation or replacement on the same property is not possible, the Tree Ordinance requires the permit grantee to "[p]ay monies into the township tree fund for tree replacement within the township" or "[p]lant the required trees off site." Tree Ordinance, § 5A.08(E)(1)-(2). With respect to the tree fund, the Tree Ordinance provides that "[t]hese monies shall be equal to the per-tree amount representing the current market value for the tree replacement that would have been otherwise required." Tree Ordinance, § 5A.08(E)(1). At the time of this litigation, the market value of regulated trees was between $225 and $300 per tree and $450 for landmark trees.
Subsequently, after viewing the property from afar, Thurston contacted defendant to advise it of the violations. The parties agreed on a date for plaintiff to inspect the property, and in August 2018, plaintiff and its agents, using representative plots from the parent parcel, conducted an analysis to estimate the number of trees removed. Plaintiff concluded that defendant had cleared 100 landmark trees and 1,385 regulated trees from the property.
That same month, plaintiff issued defendant a notice of violation requesting it to resolve the violation. Consistent with its Tree Ordinance, plaintiff required defendant to either replace the 1,485 trees removed in the ratios the Ordinance required, or pay the market value of the trees into the tree fund, approximately $446,625. Despite attempts at informal resolution, plaintiff, in October 2018, learned through news media that defendant had planted 1,000 Norway Spruce on the property for a Christmas tree farm.[3]
In November 2018, plaintiff filed the instant complaint alleging multiple violations of the Tree Ordinance. Plaintiff sought a declaratory judgment that the actions taken by defendant were violations of the Tree Ordinance and a nuisance per se under MCL 125.3407, and an order requiring defendant to correct the violations and to pay the required amount into the tree fund.
Defendant responded to the complaint, denying the allegations therein and raising multiple counterclaims. Specifically, defendant alleged that the Tree Ordinance constituted an unreasonable seizure in violation of the Fourth Amendment of the United States Constitution, U.S. Const, Am IV; an unlawful per se and as-applied taking under the Fifth Amendment of the United States Constitution, U.S. Const, Am V, and the Michigan Constitution, Const 1963, art 10, § 2; an unconstitutional condition on the use of property under the Fifth Amendment of the United States Constitution, U.S. Const, Am V, and the Michigan Constitution, Const 1963, art 10, § 2; and an excessive fine under the Eighth Amendment of the United States Constitution, U.S. Const, Am VIII.
Defendant moved for summary disposition under MCR 2.116(C)(10) as to its constitutional claims.[4] Defendant argued that the Tree Ordinance was a per se regulatory taking similar to that in Horne because the Tree Ordinance forbids defendant from exercising any property rights related to the trees. The Tree Ordinance effectively takes possession of the trees because defendant cannot use, sell, or destroy the trees without paying plaintiff the current market value. Defendant also posited that the Tree Ordinance was a per se regulatory taking under Loretto v Teleprompter Manhattan CATV Corp, 458 U.S. 419; 102 S.Ct. 3164; 73 L.Ed.2d 868 (1982), because it forced defendant to maintain unwanted objects on the property. Defendant argued that the Tree Ordinance constituted a regulatory taking under the balancing approach of Penn Central. In particular, the economic impact of...
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