Canton Township ‘tree police’ feud fuels legislative fight

Jonathan Oosting
The Detroit News
Sen Tom Casperson, R-Escanaba, speaks as the Michigan Senate passes "Prevailing Wage" legislation Thursday morning at the Capitol in Lansing. (Dale G Young/Detroit News)

Lansing — A Canton Township feud is fueling accusations that local “tree police” are harassing businesses, prompting a push by state lawmakers to rein in local government rules that limit tree removal or force a business to pay replacement fees.

Republican legislation teed up for a possible Senate vote this week during the so-called lame-duck session would allow local governments to regulate the cutting of some large “heritage” trees but ban more aggressive ordinances regulating smaller trees and vegetation in industrial, business, commercial or agricultural zones.

Critics argue the proposal is an overly broad response to a local battle in Canton Township, which this month sued businessmen Gary and Matt Percy. The Wayne County township alleged they cleared an estimated 1,500 protected trees from an industrial property without seeking approval through a local permitting process or paying to plant replacements on public property.

Canton officials asked the brothers to pay up to $550,000 into a “tree fund” — more than the Percys paid last year for the full 16-acre property, which "essentially was blighted" and plagued by an invasive species, said attorney Michael Pattwell, who argued the legislation is a “narrowly tailored” way to prevent abusive local rules.

“It stops a command and control in an unreasonable fashion,” Pattwell told lawmakers Tuesday in testimony before the Senate Natural Resources Committee. The Percy brothers watched from the crowd as their attorney was joined by Frank Powelson, another local business owner who has also battled Canton’s tree preservation ordinance. 

Local government and environmental groups contend the six-bill package would usurp local control and impose a one-size-fits-all approach on communities across the state that have developed unique tree and vegetation preservation rules.

“If it even needs to be addressed, it definitely needs a scalpel,” said Sean Hammond of the Michigan Environmental Council. “This bill we equate more to a literal chainsaw.”

The Canton Township dispute points to a larger debate over property rights, said Sen. Tom Casperson, an Escanaba Republican who chairs the Natural Resources Committee and sponsored one of the measures. Local tree preservation ordinances could be a “slippery slope” toward favoring the “masses” over individual owners, he argued.

“We’re talking about personal property,” said Casperson, a former logging trucker who has regularly feuded with environmental groups. “We’re talking about the ability of local units to now tell someone with personal property, ‘You don’t technically own that tree. We own it by zoning. Therefore, we can dictate what you can and cannot do with that tree.’”

The debate is about property rights, agreed Bill Anderson of the Southeast Michigan Council of Governments. But the legislation would ax ordinances that help protect “not just the property owners, but the neighboring property owners,” he argued.

Opponents noted that trees and vegetation can serve as a natural filtration system for storm water, help draw chemical contaminants from the soil at industrial sites and provide a sound or sight barrier between industrial and residential properties.

“We’re going to replace a wall of trees with a wall of bricks if this gets enacted,” Anderson said.“We’re going to replace a natural filtration system with a complete underground infrastructure to handle storm water. This is going to cost developers huge amounts of money because local units of government can no longer use the natural environment to minimize the negative impacts that will occur when development takes place.”

The Texas Public Policy Foundation, a conservative think tank, sued Canton Township in federal court on Tuesday, alleging its tree ordinance is an unconstitutional taking of private property and the replacement fee is an "excessive fine" prohibited by the Eighth Amendment.

Davey Tree cut trees along power lines behind Inge Gray's home in Bloomfield Hills.

Town takes fight to court

Canton Township requires anyone planning to remove trees on their property to submit a tree survey indicating how many they intend to remove. The process is designed to ensure the "protection and conservation of irreplaceable natural resources from pollution, impairment or destruction,” according to the township code

The Percy brothers, who own a trucking and logistics company, were twice told about the requirement when they purchased a neighboring property near Yost Road but cleared it without a permit, township attorney Kristin Kolb told The Detroit News.

While there is no evidence left of what type of trees were removed, Kolb said experts who studied other land nearby determined it was likely covered by a combination of mature hardwood trees, including oaks and maples that are protected under city ordinance.

 “Because of the size and scope of what happened,” the township decided to sue the brothers and is asking them to make a required deposit into a government tree fund used to plant replacements on public property, Kolb said.

Since clearing the property, the Percy brothers began planting spruces on the land to create a Christmas tree farm in an apparent attempt to qualify for an exemption to the tree preservation ordinance. But Wayne County Circuit Court Judge Susan Hubbard halted the effort amid the ongoing legal battle.

Teresa Hurst, a certified arborist who testified alongside the Percy brothers’ attorney, said the property they cleared was overrun with buckthorn, an invasive species that requires an aggressive remedy. Clearing the property — along with any trees — was “the best way” to deal with the invasive plant, Hurst told lawmakers, disputing township estimates for the number of trees on the property.

“The biggest threat to urban forests is invasive species and bureaucracies that demand adherence to rules over wise forestry practices,” she said. “People cannot be good stewards of their land if they are required to jump through endless hoops in the permit process.”

But other arborists and tree experts argued against the proposed legislation, suggesting the approach is too broad for an issue that requires knowledge of the local environment.

Tree preservation ordinances are designed to protect the “urban canopy” and the ecosystems they support, said Julie Stachecki with the Arboriculture Society of Michigan. She noted ordinances vary by community and suggested lawmakers study which rules are working instead of tossing them all out. 

“While there may have been some egregious interpretation of some of the ordinances, the vast majority of the outcomes of these ordinances have been for the positive good and positive results for our local communities,” she said.

'Tree police'

The Canton Township ordinance generally prohibits the removal or relocation of any tree greater than six inches in diameter without first obtaining a permit, but there is an exemption for commercial nurseries or tree farm operations. 

Canton requires anyone who removes a protected tree to either plant replacements or pay into a tree fund to help the city plant, maintain or preserve trees and forest areas. The fee must equal the "current market value" for the tree replacement that would have otherwise been required. 

At least 35 Michigan communities have similar ordinances, said Pattwell, the Percy’s attorney who is fighting the Canton rules and said he's looking forward to arguing the case in court. 

"They’re not paying any landowners for planting additional trees on their property," Pattwell told The News. "The very existence of these local tree laws makes no sense. If they want to promote trees in communities, there are other ways that don’t allow for abuse of power like this."

The state legislation would not affect regulations for residential property. Casperson said he is open to restricting residential ordinances as well, but that would be a "heavier lift” and he wants to complete the legislation by the end of the year. The committee -- and then the full Senate -- could vote on the package Wednesday.

"Nobody is arguing the value of tree-lined neighborhood streets, but in some communities, the ‘tree police’ use these ordinances to harass property owners and fill local coffers," Casperson said earlier this month when he introduced the bill.

Sen. Dave Robertson, R-Grand Blanc, made it clear he intends to vote for the measure in committee, saying it is appropriate for the state to “rein in” local tree preservation ordinances.

“Ownership means the right of use and disposal,” Robertson said. “If you can’t dispose of property, you don’t own it fully.”

The Canton ordinance requires three replacement trees for the removal of each "landmark" or historic tree, such as a maple with a diameter of at least 18 inches. The state legislation would only allow protections of maples at least 30 inches in diameter.

“I’ve heard a lot of talk about trees, but the legislation speaks to all vegetation ordinances, which is a lot broader than trees,” said Jen Rigterink with the Michigan Municipal League, which opposes the legislation.

Twitter: @jonathanoosting