Posted by: Patricia Salkin | March 23, 2010

Owner Violated Township’s “Tree Protection” Ordinance By Cutting Trees on Undeveloped Parcel

Defendant  owns an undeveloped parcel undisputedly larger than 10 acres and smaller than 25 acres. In 2007, plaintiff received complaints from nearby residents defendant was cutting down trees. Defendant was ticketed for violating the ordinance. The misdemeanor charge was dismissed and plaintiff filed this civil suit, seeking damages and an injunction prohibiting further cutting. Defendant argued the trial court’s interpretation of the ordinance was contrary to the plain language of the ordinance. The court held both parties were correct to some extent. Defendant was correct in reading the plain language of § 4.01 as requiring a tree removal permit only when a site plan was filed. “A mere intent or mental plan to develop property does not trigger the requirement of applying for a tree removal permit.” However, plaintiff was also correct the ordinance should be read as a whole. Nothing in § 4.01 identified it as being the only description of parcels to which the permit requirement applied. Reading it this way, as defendant would like, would render nugatory not only the words “ten acres in size or greater” but also several of the exceptions identified in Article VI. No site plan would be on file for land being used for agriculture, conservation, or outdoor recreation, so exceptions would not be needed for those uses. It was “nonsensical” to argue the enactors intended to exempt those lands if they were being subdivided for development, because the developers would then have to submit a plat or plan, triggering the need for a tree removal permit, again rendering the exception unnecessary. The only reasonable reading of the ordinance as a whole was it applied to all parcels of 10 or more acres unless an exception applied, and to all parcels, regardless of size, for which a site plan or plat has been filed. Because there was no dispute defendant’s property was over 10 acres, the ordinance applied and he was required to seek a permit before cutting the trees. 

Huron Charter Township  v Fox, 2010 WL  815842 (Mich. Ct. App. 3/2/2010)

The opinion can be accessed at: http://www.michbar.org/opinions/appeals/2010/030210/45228.pdf


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