Who Should Pay to Protect Trees? Tree Protection, Regulatory Takings, and Unconstitutional Conditions

Abstract

Problem, research strategy, and findings: Trees are vital for terrestrial ecosystems and community wellbeing. Local tree protection ordinances typically limit the removal of trees or require replanting for mitigation. Because conserving trees advances climate change mitigation and adaptation, tree ordinances will likely become more widespread and demanding, prompting more pushback from property owners. Such pushback happened recently in response to a Michigan township’s tree protection ordinance. Two adjacent property owners alleged in federal and state court, respectively, that the ordinance effected a special kind of regulatory taking, one premised on an unconstitutional condition. The township lost both cases, voiding its efforts to mitigate the substantial loss of trees. This article analyzes the two legal cases together as a single case study. That case suggests that, rather than contesting the legitimacy of tree protection ordinances generally, property owners will assert instead that the public—not individual tree owners—should bear all the costs of conserving trees. The case highlights key ethical, legal, and planning principles to consider for making tree protection ordinances both effective and legally defensible, including the use of a mitigation plan and determination when requiring mitigation, and it suggests needed additional research on tree mitigation assessment methods for planning and zoning. Takeaway for practice: It is not enough to ensure that mitigation requirements for tree removal are reasonably related to community welfare, climate change mitigation, and other goals; it is also necessary to fully justify those requirements to property owners and sometimes to courts, especially when addressing the distribution of the burdens and benefits of those requirements across property owners and deciding who—property owners or the community—should “pay” to protect trees.