Gary and Matt Percy are in trouble with the township of Canton, Michigan for allegedly cutting down trees on their own property without a permit. They cleared a 16-acre plot with the intention of putting in a Christmas tree farm – thus qualifying for an agricultural exemption to the township’s draconian tree ordinance.
But the township claims that cutting down their own trees violates a city ordinance: “The Percys were told twice in writing that a tree removal permit must be obtained prior to any tree removal activity on the site. They never made any application for a tree removal permit.”
The brothers are fighting back, with the help of local attorney Michael Pattwell and the Texas Public Policy Foundation.
“The ordinance used against the Percy brothers is unconstitutional. They shouldn’t have to ask anyone’s permission for what they did on their own land,” says TPPF attorney Chance Weldon. “The issue here is property rights – a bedrock of the rule of law.”
The land in question had been used as a dairy farmer’s pasture; it had become overgrown. It was largely blighted; there was trash and invasive species. There were dead ash trees from flooding. They cleared the land to plant their trees, and then initially got hit with a fine of over $700,000. The town eventually dropped it to $450,000, but still more than the entire property is worth.
The township’s ordinance is unconstitutional in four ways, TPPF argues.
“The Eighth Amendment bans excessive fines,” TPPF’s Chance Weldon explains. “And the Supreme Court has interpreted that to mean that fines can’t be grossly disproportionate to the harm caused. And there’s no evidence that the Percy brothers’ actions have caused harm to their neighbors or anyone else. These were trees and brush on their own property.”
The township is also in violation of the Constitution’s “takings” clause of the Fifth Amendment.
“If the government takes a possessory interest in your property, it has to pay you,” says Weldon. “When the township says you can’t cut down your own trees without buying a permit, that’s a ‘taking.’ Government has taken control of your property.”
Just as the government can’t take your property without just compensation, neither can it force you to keep something on your land that you don’t want.
“In essence, the township wanted to force the Percys to keep unwanted brush and undergrowth on their land,” Weldon says.
Finally, when government demands a permit for a land use, the conditions it puts on the permitting must be “roughly proportional” to the government’s interest. Weldon contends that the township’s fines are way out of proportion to its interests.
“We’ve done quite a bit of work in Texas on tree ordinances,” he notes. “That puts us in a good position to help the Percy brothers defend themselves and challenge an unconstitutional ordinance.”
The goal isn’t just to win on behalf of the Percy brothers’ Christmas tree farm; the goal is to set a precedent on behalf of property rights for all Americans.