F.P. Dev. v. Canton Twp. of Canton

• Decision Date: 08 December 2022
• Docket Number: 18-CV-13690
• Parties: F.P. DEVELOPMENT, LLC, Plaintiff/Counter-Defendant, v. CHARTER TOWNSHIP OF CANTON, Defendant/Counter-Plaintiff.
• Court: U.S. District Court — Eastern District of Michigan

F.P. DEVELOPMENT, LLC, Plaintiff/Counter-Defendant,
v.
CHARTER TOWNSHIP OF CANTON, Defendant/Counter-Plaintiff.

No. 18-CV-13690

United States District Court, E.D. Michigan, Southern Division

December 8, 2022

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR FURTHER RELIEF UNDER 28 U.S.C. § 2202 (ECF Nos. 63 AND 64)

GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE

This matter is before the Court on the motion for further relief under 28 U.S.C. § 2202 filed by plaintiff/counter-defendant, F.P. Development, LLC (“F.P.”) (ECF No. 63, amended by ECF No. 64). For the reasons explained below, F.P.'s motion is denied

BACKGROUND

The facts of this case are set forth in detail in the Court's prior order and will only be summarized here. See, F.P. Development, LLC v. Charter Township of Canton, 456 F.Supp.3d 879 (E.D. Mich. 2020). Canton regulates the removal of trees in the Township through Article 5A.00 of its Zoning Ordinance (“ZO”), which the parties refer to as the Tree Ordinance. The purpose of the Tree Ordinance is to promote “an increased quality of

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life through the regulation, maintenance and protection of trees, forests and other natural resources.” ZO § 5A.02. The Tree Ordinance requires property owners in Canton to obtain a permit before removing certain trees or undergrowth from their properties. To obtain a permit, a property owner must submit an application that includes a tree survey of the property, a description of the area affected by the tree removal, and a description of the trees to be removed. ZO § 5A.05(D). The Tree Ordinance sets out factors to be considered in determining whether or not to grant a tree removal permit, including scenic assets, wind blocks, noise buffers, soil quality, and habitat quality. ZO § 5A.05.F. If Canton issues a permit, the Tree Ordinance provides that the permit grantee must mitigate the tree removal by relocating or replacing removed trees or paying a designated amount into Canton's tree fund so the township can replace the trees elsewhere. ZO § 5A.08.

In 2018, F.P. removed trees from a strip of land on its industrially zoned property so it could access a clogged ditch. F.P. did not apply for a permit, so it did not pay the application fee, nor did it submit a tree survey or any of the other required application materials. Because F.P. did not apply for a permit, Canton did not undertake an analysis of the factors set

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forth in ZO § 5A.05.F. When Canton discovered that F.P. was removing trees without a permit, it notified F.P. that it was in violation of the Tree Ordinance and advised F.P. that it would be required to pay a penalty. F.P. filed this lawsuit seeking declaratory and injunctive relief under 42 U.S.C. § 1983. Canton countersued for $47,898, representing the amount F.P. owed to replace the removed trees.

In addressing the parties' cross-motions for summary judgment, this Court concluded that the Tree Ordinance's tree replacement requirement is an unconstitutional taking as applied to F.P. under two different legal theories. First, the Court engaged in the balancing test set forth by the Supreme Court in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). The Court considered the economic impact of the tree replacement burden imposed by the Tree Ordinance, concluding that it is substantial and weighs in favor of a finding that the regulation goes too far. Next, the Court found that the impact of the Ordinance's tree replacement costs interferes with F.P.'s investment-backed expectations as to the use of its property. Finally, the Court determined that the character of the government action, requiring a private property owner to maintain the trees on its property for the benefit of the community at large, was a burden that

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should be shared by the community as a whole. The ad hoc factual inquiry led the Court to the conclusion that the mitigation requirement of the Tree Ordinance goes too far and amounts to an unconstitutional regulatory taking as applied to F.P.

The Court next considered the Land-Use Exaction Theory as set forth in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994). An exaction takes place when a government entity requires action by a landowner as a condition to obtaining approval for a requested land development. A land-use exaction is permissible when there is a “'nexus' and ‘rough proportionality' between the government's demand and the effects of the proposed land use.” Koontz v. St. Johns River Water Mgmt. Dist., 570 U.S....