Township drops tree ordinance fight in federal court

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Despite rising legal bills, Canton Township officials continue to defend a controversial tree ordinance intended to conserve more greenery in the community.

Supervisor Anne Marie Graham-Hudak and Township Attorney Kristin Kolb released a statement acknowledging defeat in the federal court system but an ongoing fight in the Michigan Court of Appeals.

“Board members have reviewed the $72,439.46 spent to date on the FP Development case and have decided not to pursue any further appeal to the U.S. Supreme Court and to comply with the decision of the United States Court of Appeals for the 6th Circuit,” Graham-Hudak said.

The United States Circuit Court of Appeals in Cincinnati sided with Frank Powelson and his FP Development LLC late last year.

Township officials said the court’s decision means the township is still requiring tree surveys of residential owners over two acres and commercial owners wishing to cut down trees. These surveys include details such as species, sizes and locations of certain trees, as well as trees to be cut down.

The township will also be required to conduct individual assessments regarding impacts to properties in the event of tree removal. A process is being determined.

“(Yet) there is an outstanding court case challenging our tree ordinance, a state court case, Canton v. 44650, Inc.,” Graham-Hudak said. “We are still defending our tree ordinance in this case. There are other issues that the 6th Circuit has not decided that we believe will give the Michigan Court of Appeals a chance to rule in our favor.

The Texas Public Policy Foundation, a nonprofit that fights issues it calls government abuse, pro bono represented Frank Powelson and his FP Development LLC, and in a separate case Matt and Gary Percy, who own ADT Transport Express and 44650, Inc.

Foundation attorney Rob Henneke said he was surprised the township wouldn’t drop the order that meant charging clients thousands of dollars for removing trees from their properties.

Before his 2018 trial, the township was asking Powelson to plant new trees or contribute about $50,000 to the township’s tree fund. The township’s bill for the brothers was about $500,000.

“It’s very surprising,” Henneke said. “I think it just shows that there is a stubbornness with the township on these issues that is not being addressed by their leaders.

“I don’t know what they’re trying to accomplish when they’ve been told four times by four different sets of judges that this tree ordinance they’re enforcing is unconstitutional.”

Graham-Hudak said the township is not pursuing the mitigation costs it seeks from FP Development since a federal appeals panel agreed its tree ordinance was unconstitutional and the federal appeals court ruled. also denied a request that all judges hear the case. Any additional tree removal will be subject to permit fees.

She pointed out that the township’s tree ordinance was intended to preserve green spaces. Money for the tree fund was intended to keep the community green.

“Trees and green spaces are essential to the quality of life in our community,” said Graham-Hudak. “Trees mitigate flooding and soil erosion, produce oxygen, provide a natural habitat for wildlife, and contribute to an aesthetic that makes Guangzhou a place where people want to live, work and enjoy the natural landscape.

“Although we are disappointed with the court’s decision,” she continued. “We will work to change the order to comply with the court’s decision while protecting the vibrancy of our community.”

She added that township officials are reviewing zoning rules so the township can continue to mitigate flooding and soil erosion and address other preservation needs.

The fate of the township’s trees has prompted surrounding communities to review their own ordinances.

Meanwhile, Hometown Life filed a Freedom of Information Act request for legal bills associated with defending the township’s tree ordinance. They totaled around $155,000, with the highest annual cost registering around $77,000 in 2020.

The Percy brothers also sued the township alleging violations of their constitutional rights. Township documents provided to Hometown Life show a cost of at least $180,000.

The maximum amount Canton will pay for any claim is $250,000. The insurance takes care of the expenses beyond.

Contact reporter Susan Vela at [email protected] or 248-303-8432. Follow her on Twitter @susanvela.

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