Planning and Regulating for Trees and Unconstitutional Conditions

Regulating private property to protect trees can trigger constitutional protections of property rights and prompt litigation. That happened recently in Michigan, when two property owners who removed trees litigated in federal and state courts when the local township demanded mitigation payments into a tree planting fund, alleging regulatory takings premised on unconstitutional conditions. The courts in both cases determined that the township should have, and failed, to conduct “individualized determinations” to confirm that the regulatory burdens on the property owners were “roughly proportional” to the harms caused by removing trees. Because it failed to do so, the township lost both cases, voiding demands for mitigation.

This presentation addresses the potential for regulatory takings claims against tree-protection ordinances based on unconstitutional conditions. It summarizes current planning practice regarding tree protection, reviews current case law regarding regulatory takings and unconstitutional conditions, and presents various approaches for conducting an individualized determination to assess the burden of tree mitigation. These include modifications to common practice and several novel methods developed by adapting the i-Tree suite of software. Presenters conclude by reviewing the legal implications for planning and planning implications for the law.