AUSTIN— Yesterday, the Texas Public Policy Foundation filed a lawsuit in the Federal District Court for the Eastern District of Michigan against the township of Canton.
The lawsuit was filed on behalf of F.P. Development, LLC, and claims the township’s tree ordinance is an unconstitutional taking of private property under the Fifth Amendment and an “excessive fine” in violation of the Eighth Amendment to the U.S. Constitution.
“The Township’s ordinance marks an unfortunate trend of local government regulation that seeks to control, and even criminalize, traditional harmless uses of private property,” said Robert Henneke, general counsel and litigation director at the Texas Public Policy Foundation. “You shouldn’t need government permission to clear brush on your own property. Ownership of private property constitutionally includes use of that property.”
Frank Powelson, the owner of F.P. Development, LLC, was accused of violating the law by the township of Canton after clearing brush near a ditch located on his property. The ditch was to be maintained by the county but had been neglected for decades causing brush and shrubs to overgrow resulting in flooding of the property.
“Private property rights are enshrined in and protected by the Constitution,” said TPPF’s Senior Attorney Ted Hadzi-Antich. “By forbidding Frank Powelson from maintaining a drainage ditch on his own property in order to avoid flooding, the Town of Canton ignored his fundamental property rights. No governmental entity is permitted to do that. By filing the complaint in federal court, we are holding township of Canton accountable to the rule of law.”
Under Canton’s tree ordinance removing any tree, defined in the ordinance as anything with a woody stem and a three-inch diameter, is punishable by up to a $450 fine. The Township of Canton is now seeking potentially hundreds of thousands of dollars in fines from Powelson for removing the shrubbery from his property.
“At its core, this case is about who owns the trees on your property,” said Chance Weldon, a TPPF attorney representing F.P. Development, LLC. “Mr. Powelson didn’t hurt anyone by removing his own trees on his own property. In fact, the clearing was necessary to stop flooding that was causing a nuisance in the area. For the Township to come after him with these sorts of fines is not only absurd, it’s unconstitutional.”
The Complaint may be viewed in full at: