There are numerous situations, with which you are probably already aware, in which a governmental entity can invoke a taking of property: the widening of a road, the laying of a pipeline or water line, the stringing of powerlines from a new pole or tower…

There are other less obvious takings, one of which was seen recently when the Sixth Circuit Court of Appeals, which includes Tennessee, unanimously agreed with the District Court’s determination that the Canton, Michigan ordinance requiring a permit for the removal of certain trees from a landowner’s property, then mitigation for replacement of the trees, constituted an unconstitutional taking. F.P. Development, LLC v. Charter Twp. of Canton

Specifically, the Canton, Michigan (“Canton”) ordinance stated that after requiring a permit to remove trees, a landowner also had to replant 3 trees for every Landmark tree removed, and one tree for every other type of tree removed. In the alternative, the landowner could pay Canton’s tree fund $450 for every Landmark tree removed and $300 for every other tree removed.

The Appeals Court found that Canton made no “individualized determination” of the specific impact caused by the removal of certain trees, for example, clearing a clogged ditch or removing dead trees, which might, in fact, have improved the surrounding environment. As it stood, Canton’s regulation that a landowner must get a permit to remove trees triggered the mitigation requirements regardless of the impact of the removal. The Court concluded that “the mitigation requirement imposes a roughly proportional condition on the requested permit,” and that what Canton was requiring of landowners, was, in fact, a taking of their property rights.