F.P. Dev., LLC v. Charter Twp. of Canton

• Decision Date: 13 October 2021
• Docket Number: Nos. 20-1447/1466,s. 20-1447/1466
• Citation: F.P. Dev., LLC v. Charter Twp. of Canton, 16 F.4th 198 (6th Cir. 2021)
• Parties: F.P. DEVELOPMENT, LLC, Plaintiff-Appellee/Cross-Appellant, v. CHARTER TOWNSHIP OF CANTON, MICHIGAN, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

16 F.4th 198

F.P. DEVELOPMENT, LLC, Plaintiff-Appellee/Cross-Appellant,

v.CHARTER TOWNSHIP OF CANTON, MICHIGAN, Defendant-Appellant/Cross-Appellee.

Nos. 20-1447/1466

United States Court of Appeals, Sixth Circuit.

Argued: June 10, 2021

Decided and Filed: October 13, 2021

ARGUED: Anne McClorey McLaughlin, ROSATI, SCHULTZ, JOPPICH & AMTSBUECHLER, P.C., Farmington Hills, Michigan, for Appellant/Cross-Appellee. Chance Weldon, TEXAS PUBLIC POLICY FOUNDATION, Austin, Texas, for Appellee/Cross-Appellant. Richard K. Norton, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan, Ilya Shapiro, CATO INSTITUTE, Washington, D.C., for Amici Curiae. ON BRIEF: Anne McClorey McLaughlin, ROSATI, SCHULTZ, JOPPICH & AMTSBUECHLER, P.C., Farmington Hills, Michigan, for Appellant/Cross-Appellee. Chance Weldon, Robert Henneke, Theodore Hadzi-Antich, TEXAS PUBLIC POLICY FOUNDATION, Austin, Texas, Michael J. Pattwell, CLARK HILL PLC, Lansing, Michigan, for Appellee/Cross-Appellant. Richard K. Norton, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan, Sean Hammond, MICHIGAN ENVIRONMENTAL COUNCIL, Lansing, Michigan, Ilya Shapiro, CATO INSTITUTE, Washington, D.C., Robert E. Thall, BAUCKHAM, SPARKS, THALL, SEEBER & KAUFMAN, P.C., Portage, Michigan, Kathryn D. Valois, PACIFIC LEGAL FOUNDATION, Palm Beach Gardens, Florida, Kimberly S. Hermann, SOUTHEASTERN LEGAL FOUNDATION, Roswell, Georgia, Braden Boucek, THE BEACON CENTER OF TENNESSEE, Nashville, Tennessee, Brian K. Kelsey, LIBERTY JUSTICE CENTER, Chicago, Illinois, for Amici Curiae.

Before: COLE, BUSH, and NALBANDIAN, Circuit Judges.

JOHN K. BUSH, Circuit Judge.

American history teems with stories and myths of trees. Johnny Appleseed's apple trees and George Washington's cherry tree are but a few of those timber tales that inspire and teach. Whether to plant or cut down a tree can be, for better or worse, an individual choice. But sometimes the government gets involved. For example, it can reward those who plant, see, e.g. , Timber Culture Act of 1873, ch. 277, 17 Stat. 605 (granting additional land to homesteaders who planted seedlings), or compensate for land taken to conserve, see, e.g., Migratory Bird Conservation Act of 1929, 16 U.S.C. § 715 et seq . Those "carrot" measures serve to further the public interest in tree cultivation and management while compensating private parties for their property and efforts.

Here, however, the government used what F.P. Development portrays as the "stick" approach. Intending to help preserve its greenery, the Charter Township of Canton, Michigan, passed an ordinance that prohibits F.P. from removing certain trees on its land without a permit and requires F.P. to mitigate the removal. F.P. challenges the regulation, claiming that it constitutes a taking of its property without just compensation, an unreasonable seizure, and an excessive fine. The district court granted summary judgment to F.P. on the takings claim and to Canton on the others. We affirm.

I.

Around July 2006, Canton passed an ordinance, which the parties refer to as the Tree Ordinance, addressing forest preservation and tree clearing. The township's aim was to improve its community and protect its natural resources. Accordingly, the Tree Ordinance requires tree owners in Canton to get a permit before removing certain trees or undergrowth from their properties. Specifically, the ordinance deals with four categories of tree-related clearing. It prohibits the unpermitted removal, damage, or destruction of (1) any tree with a diameter at breast height of six inches or greater, (2) any landmark or historic tree,¹ (3) any tree located within a forest and with a diameter at breast height of three inches or more, and (4) any under-canopy vegetation within the dripline of a forest. There are, however, numerous exceptions. For example, agricultural and farming operations, commercial nurseries, tree farms, and occupied lots of fewer than two acres are not subject to the permitting requirement.

The unlucky tree owner who does not fall into one of those exceptions has to submit a tree-removal-permit application to Canton before commissioning an arborist. Among other requirements, the application must describe the area affected by the tree removal, each tree to be removed and its location, and what the affected area will look like after the proposed removal. The ordinance also lists review procedures and standards that Canton must follow when reviewing applications. Those procedures require the township to evaluate the effect of the proposed development on the quality of the surrounding area.

If Canton issues a permit, a tree owner must agree to mitigate the tree removal. The Tree Ordinance lists three standardized mitigation options: a tree owner can replace removed trees on its own property, replace them on someone else's property, or pay a designated amount into Canton's tree fund so the township can replace them elsewhere. For every landmark tree cut down, a tree owner must replant three trees or pay about $450 into the tree fund. For every non-landmark tree cut down as part of a larger-scale tree removal, a tree owner must replant one tree or pay about $300 into the tree fund. If a tree owner fails to comply with those requirements, Canton sends a notice of violation and requires that the tree owner submit a permit application or face an enforcement lawsuit.²

F.P. Development, a real-estate holding company owned by Martin F. Powelson, is one of those non-complying tree owners. In 2007, F.P. purchased a 62-acre parcel of undeveloped land from Canton for $550,000. The plan was to use the land to expand Powelson's traffic-control sign business, POCO, which occupied the lot adjacent to the 62-acre parcel. F.P. left the land undeveloped until 2016, when it filed a property split application with Canton, requesting permission to split 44 acres of the property roughly in two: a 28-acre plot for F.P. to keep and a 16-acre plot to sell. Canton tentatively approved the separation and noted that any development involving tree removal would require the proper permitting. By 2017, F.P. completed the split.

But, unfortunately for F.P., the two parcels were bisected by a county drainage ditch that had become clogged with fallen trees and other debris. After the county refused to clear the ditch, F.P. contracted with a timber company to remove the trees and debris and to clear several other trees from the property. As to that removal, F.P. did not apply for or receive a permit. Nor did it receive permission from Canton to proceed without a permit.

Soon after, someone tipped off Canton's Landscape Architect and Planner to F.P.’s unpermitted tree removal. The township investigated and confirmed the tip. It then posted a "Stop Work" order on F.P.’s property and issued a "Notice of Violation." The notice made clear that a survey of the property was required to determine the number and species of trees removed so that Canton could enforce the Tree Ordinance.

From that survey, Canton determined that F.P. had removed 159 trees—14 landmark trees and 145 non-landmark trees. To comply with the ordinance, F.P. had to either replant 187 trees (three for every landmark tree removed and one for every non-landmark tree) on its or another's property or deposit $47,898 into Canton's tree fund.

F.P. chose neither option. Instead, it filed a lawsuit, seeking declaratory and injunctive relief under 42 U.S.C. § 1983. It claimed that Canton's Tree Ordinance constituted (1) a facial and as-applied unconstitutional taking, in violation of the Fifth and Fourteenth Amendments; (2) an unreasonable seizure, in violation of the Fourth and Fourteenth Amendments; and (3) an excessive fine, in violation of the Eighth and Fourteenth Amendments. The Township filed a counterclaim seeking $47,898 in damages.

After several months of discovery, F.P. moved for summary judgment. Canton moved to dismiss the case on ripeness grounds, for judgment on the pleadings, or for summary judgment in its favor. The district court denied Canton's motion to dismiss on ripeness grounds. The court then granted F.P. summary judgment on its as-applied Fifth Amendment claim. It reasoned that although the ordinance, as applied to F.P., was not unconstitutional as a per se physical taking, it was unconstitutional as a regulatory taking and as an unconstitutional condition. The court did not decide F.P.’s facial challenge. Finally, the court granted Canton summary judgment on F.P.’s Fourth and Eighth Amendment claims. Both parties appeal.

II.

We review a district court's decision on summary judgment de novo. Jackson v. City of Cleveland , 925 F.3d 793, 806 (6th Cir. 2019). Summary judgment is appropriate when there is "no genuine dispute as to any material fact" and the moving party "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). We construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Jackson , 925 F.3d at 806.

III.

A. RIPENESS

We begin with the questions about our jurisdiction. The doctrine of ripeness prevents courts from deciding cases or controversies prematurely. See Nat'l Park Hosp. Ass'n v. Dep't of Interior , 538 U.S. 803, 807–08, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). It is "drawn both from Article III limitations on judicial power and from prudential" concerns. Id. at 808, 123 S.Ct. 2026 (quoting Reno v. Catholic Soc. Servs., Inc. , 509 U.S. 43, 57 n.18, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) ). Issues of ripeness rooted in Article III are jurisdictional; those based on prudence are not. See Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. , 559 U.S. 662, 670 n.2, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) ; see also Lucas v. S.C. Coastal Council , 505 U.S. 1003, 1012–13, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992).

Amici Michigan Township Association and Michigan Municipal League argue on appeal that F.P.’s as-applied challenge to the Canton Tree Ordinance is not ripe for review, citing prudential ripeness concerns. But Canton did not...