F.P. Dev., LLC v. Charter Twp. of Canton
| Citation | 456 F.Supp.3d 879 |
| Decision Date | 23 April 2020 |
| Docket Number | CASE NO. 18-CV-13690 |
| Parties | F.P. DEVELOPMENT, LLC, Plaintiff, v. CHARTER TOWNSHIP OF CANTON, Defendant. |
| Court | United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan) |
Chance Dean Weldon, Robert Earl Henneke, Theodore Cirilo Hadzi-Antich, Texas Public Policy Foundation, Austin, TX, Cynthia M. Filipovich, Stephon B. Bagne, Clark Hill PLLC, Detroit, MI, Ronald A. King, Michael J. Pattwell, Clark Hill, PLC, Lansing, MI, for Plaintiff.
Anne McClorey McLaughlin, Rosati, Schultz, Joppich & Amtsbuechler, P.C., Stephanie S. Morita, Johnson Rosati, Farmington Hills, MI, Kristin B. Kolb, Charter Township of Canton, Canton, MI, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 29) AND GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 26)
Plaintiff F.P. Development, LLC ("F.P.") has brought this 42 U.S.C. § 1983 action against Defendant Charter Township of Canton ("Canton" or the "Township") challenging the constitutionality of the Township's Forest Preservation and Tree Clearing Ordinance (the "Tree Ordinance" or the "Ordinance"). Plaintiff removed approximately 173 trees from its 24-acre, industrially-zoned property without a permit in order to access a ditch that was clogged and causing flooding. The Township has assessed costs against F.P. in the amount of $47,898 for the removal of trees or requires that F.P. replace the trees. F.P. alleges that the Tree Ordinance is an unlawful taking without just compensation on its face and as applied under the Fifth Amendment, is an unconstitutional seizure in violation of the Fourth Amendment, and amounts to an excessive fine in violation of the Eighth Amendment.
Canton has brought a three-count Counter-Complaint against F.P. seeking $47,898 in damages and alleging violations of the Ordinance for (1) failure to obtain a tree removal permit, (2) failure to erect a protective barrier around landmark trees, and (3) failure to observe a setback from wetland areas and watercourses. Now before the court are the parties’ cross-motions for summary judgment of F.P.’s claims. The Township has also moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the grounds that the as applied takings claim is allegedly unripe. The Township has also moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Because the court has considered matters outside the pleadings, the court analyzes Canton's dispositive motion under Federal Rules of Civil Procedure 12(b)(1) and 56 only.
Neither side has addressed the viability of Canton's Counter-Complaint. Oral argument was heard on January 23, 2020 and informs this court's decision. For the reasons set forth below, F.P.’s motion for summary judgment shall be GRANTED IN PART as to its Fifth Amendment takings claims (Counts I, II, and IV), and DENIED IN PART as to its Fourth Amendment violation claim (Count III) and excessive fines in violation of the Eighth Amendment claim (Count V). The Township's cross-motion for summary judgment shall be GRANTED IN PART as to F.P.’s Fourth Amendment violation claim (Count III) and excessive fines in violation of the Eighth Amendment claim (Count V), but is DENIED IN PART as to the rest of F.P.’s claims.
Martin Powelson is the owner of F.P. F.P. is a land holding company. Around 2007, Powelson purchased a multi-acre parcel in Canton Township for $550,000. (ECF No. 35-9, PageID.791). In 2017, an application was filed on behalf of F.P. to split off 16-acres from the 40-acre parcel which was zoned industrial. (ECF No. 16-2). In the Township's tentative approval letter, Canton's Planning Services notified Plaintiff's engineer that upon the split, a tree removal permit would be required prior to any tree removal. (ECF No. 16-4). In late 2017, the property split was complete, and F.P. deeded 16 acres to the Percys and their company 44650, Inc. (the "Split Parcel"). (ECF No. 34-3, PageID.673-74). After the split, F.P. retained a 24-acre parcel (the "Property") located West of Sheldon Road and South of Michigan Avenue in Canton Township. (ECF No. 35-4, PageId.765).
Powelson's primary business is POCO signs. Id. at PageID.765. POCO builds, stores, transports, and sells signs. Id. at PageID.766. The Property at issue in this lawsuit is adjacent to POCO signs and was purchased with the intention of expanding POCO's operations. Id. The Property and Split Parcel are undeveloped and covered with trees and vegetation. After the split, both F.P. and 44650, Inc. removed many trees from their adjacent properties without first obtaining tree permits. F.P. claims the tree clearing was necessary to address flooding on the Property and neighboring properties as well caused by a drain that was obstructed by fallen trees and other debris. (ECF No. 35-4, PageID.766). In fact, the parties agree the Property is traversed by a drain that is under the jurisdiction of Wayne County. After the County refused Powelson's request that they clear the drain, Powelson hired Fodor Timber in the Spring of 2018 to remove the fallen trees from the drain, and to clear a path to reach the drain, in exchange for the right to any timber felled to complete the job. Id. at PageID.761. Before the work was complete, the Township issued F.P. a stop work order. Id. at PageID.767.
F.P. asserts it removed vegetation from its Property that included trees, scrub brush, invasive species, and some dead ash and cotton wood trees. Indeed, the removal of such trees requires a permit but does not require any tree replacement. (ECF No. 29-2, PageID.533). But the parties dispute the number, species, and location of trees removed from the property. See Plaintiff's expert report of Teresa Hurst. (ECF No. 35-5). F.P. did not apply for a tree removal permit prior to its tree clearing activities, nor has F.P. sought such a permit retroactively at any time.
According to the Complaint, in July of 2018, the Township notified F.P. that it had violated the ordinance by removing trees without a permit and advised F.P. that it would be required to pay an undisclosed penalty. (ECF No. 1, PageID.6). In August, 2018, the Township's Landscape Architect and Planner Leigh Thurston inspected the property, and according to the Township's counter-complaint, she gave Powelson verbal notice of the Tree Ordinance violation. (ECF No. 35-6, PageID.780, ECF No. 16, PageID.155-56). On September 13, 2018, the Township issued a formal Notice of Violation of the Ordinance 5A.05 which requires a tree removal permit. (ECF No. 35-6). On October 12, 2018, the Township made a second visit to the property to count and measure the removed trees. (ECF No. 16, PageID.156). Thurston prepared a report concluding that 159 "regulated" trees were removed, including 14 "landmark" trees. (ECF No. 16-10). F.P. disputes her factual findings.
F.P. has presented an expert report prepared by certified arborist Teresa Hurst who observed the Township's tree inspection on October 12, 2018. (ECF No. 35-5). According to Hurst's report, the Township's conclusions are inaccurate as they counted tree trunks which had decay indicating that they were diseased or dead when cut down, that the Township's tree count included Poplar trees which do not require a permit under the Ordinance, and the Township misidentified the variety of trees cut down and misrepresented which trees constitute landmark trees. Id. at PageID.773-74. Hurst also opined that good forestry practices include the thinning of trees to maintain a healthy development of a wood as maturing trees compete for nutrients, water, and light. Id. at PageID.775. She further states that requiring the replanting of trees in the woodland of trees with a 2-4’ caliper is ill advised as those trees are unlikely to survive and instead the better practice is to replenish with seedlings. Id. at PageID.775-76. The Township argues the court should disregard Hurst's report because it was not signed under penalty of perjury. F.P. filed a sur-reply with leave of court amending her report to add the requisite language to comply with 28 U.S.C. § 1746. (ECF No. 40-1, PageID.919).
F.P.’s neighbors on the Split Parcel also cleared trees on their property. The Township has initiated civil proceedings in Wayne County Circuit Court against F.P.’s neighbor at 44560, Inc. seeking nearly $450,000 for violation of the Ordinance. (ECF 26-7). Fearing the possibility of such enormous penalties, F.P. filed this lawsuit seeking declaratory and injunctive relief under 42 U.S.C. § 1983. According to Powelson, potential buyers have told him they will not purchase the Property because they cannot remove trees without penalty. (ECF No. 35-4, PageID.766). Canton countersued for $47,898 as the amount F.P. allegedly owes to replace removed trees. (ECF No. 16).
Having set forth the pertinent facts in this matter, the court now outlines the legislation at the heart of the parties’ dispute. The Tree Ordinance requires that a tree removal permit be obtained when a property owner, with certain exemptions, seeks to remove regulated or landmark trees, trees within a forest, or seeks to clear cut within the dripline of a forest. Art. 5A.05(A). The Tree Ordinance permit requirement does not apply to farmers, commercial tree farms, or occupied lots of less than two acres. Art. 5A.05(B). "Tree" is broadly defined to include "any woody plant with at least one well-defined stem and having a minimum [diameter at breast-height] ("DBH") of three inches." Art. 5A.01. As a condition of obtaining a permit, a landowner must either replant trees or pay a replacement cost of all landmark trees, Art. 5A.08(A), and if more than 25 percent of the total inventory of regulated trees is removed, must replant or pay a replacement cost of those trees as well. Art. 5A.08(B). Certain nuisance...
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