Don’t Touch That Tree! Tree Mitigation Regulations May Constitute a Dolan Taking

Professor Robert Thomas in his indispensable blog “” reports that U.S. Court of Appeals’ Opinion in F.P. Development, LLC v Charter TWP of Canton, No. 20-1147 (Oct. 3, 2021) in which the Court affirmed the district court’s grant of summary judgment to the property owner on its unconstitutional conditions taking claim.

The Township had a tree ordinance which prohibits property owners from removing trees on their land without the Town’s permission, and also requires owners to either replace any trees removed or pay between $300 – $450 into the tree fund.

The Court held that the regulation was a Dolan Taking.  It stated, Canton has pointed to nothing indicating, for example, that F.P.’s tree removal effects a certain level of environmental degradation on the surrounding area.  Nor does it demonstrate whether it considered that F.P.’s clearing of the clogged ditch on its property or its removal of dead trees may have improved the surrounding environment.  The only evidence on that point suggests that even if F.P. offset its tree removal in a manner not contemplated by the township, Canton would still demand its pre-set mitigation. At bottom, Canton’s support fails to get it over the bar set by Nollan and Dolan. See id. at 395–96 (noting that “the city must make some effort to quantify its findings in support” of its exactions); see also Goss v. City of Little Rock, 151 F.3d 861, 863 (8th Cir. 1998) (holding that local traffic mitigation requirements did not satisfy Dolan’s rough-proportionality test because they were based on pre-set assumptions, rather than an individualized impact assessment).

That a representative from Canton went to F.P.’s property to count and categorize the trees F.P. cut down does not alter our conclusion.  And the “individualized assessment” that Canton points to in the ordinance relates to the initial review of a permit application, not to the proportionality of the mitigation requirements.  See Canton Code of Ordinances Art. § 5A.05(F).  According to Canton’s own representative, F.P.’s removal of regulated trees triggers the mitigation requirements, regardless of the specific impact caused by their removal. Canton has not made the necessary individualized determination here.

New York City has the same requirement when it comes to tree removal.  If a builder on Staten Island needs to cut down trees to access the construction site, the builder would be required to replant trees and make a payment.  It is unconstitutional.


Posted in Dolan Taking, Tree Mitigation, Tree Regulation
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