Brothers face $450,000 in penalties for removing trees from their property

October 23, 2018 Saboty

CANTON TWP., MI — Brothers Gary and Matt Percy could face nearly half a million dollars in penalties for removing more than 1,400 trees from their property without permission from Canton Township.

The two own a 16-acre property off of Yost Road, east of Belleville Road in Canton Township with the intention of creating a Christmas tree farm on the plot, according to their attorney, Michael J. Pattwell.

The land was filled with “invasive plants like phragmites, buckthorn and autumn olive,” he said.

But the township requires land owners to gain permission and promise new tree plantings before cutting down existing forestry, especially for landmark or historic trees.

The township had an arborist compare the parcel to an adjacent property with the similar forestry to estimate how many trees were removed.

Township attorney Kristin Kolb said “it was all part of a forest.”

“They identified certain plots,” Kolb said. “They identified the number or type of trees and did some math to figure out approximately how many trees.”

The arborist estimated 1,385 trees with trunk diameter of six inches or more were removed. That could mean $225 to $300 per tree in penalties. Anther 100 landmark trees were also removed, the township estimated, meaning another $450 each.

1″Canton Tree Police showed up,” said Pattwell. “Canton Township’s tree removal ordinance prohibits landowners from removing trees from private property without government permission, which may be obtained by either payment into the township’s so-called tree fund or on-site replacement with trees of certain designated trunk diameters.

“Canton Township defines ‘trees’ as ‘any woody plant with at least one well-defined stem and having a minimum diameter at breast height of three inches.’ The Percy parcel was used historically by a local farmer for dairy pasture, so much of the vegetation on the parcel was invasive buckthorn, scrub brush and dead ash trees.”

Pattwell disputes the township’s method of estimating the number of trees removed by studying what he called “nearby property with a different land history and distinguishable characteristics.”

He also points out an exemption in the township ordinance, which states “all agricultural/farming operations, commercial nursery/tree farm operations and occupied lots of less than two acres in size, including utility companies and public tree trimming agencies, shall be exempt from all permit requirements of this article.”

Although the land is zoned “heavy industrial,” Pattwell said, the brothers believed they were in the clear under the farming exemption when they removed the trees.

“The Percy brothers believed they were exercising a state and local exemption for farming when they cleared the land, but city officials arrived on-site and signaled immediately their intention to levy big fines in excess of $700,000,” Pattwell said. “But that’s not what this case is about. We are talking here about a parcel of former pasture land surrounded entirely by industrial activity.

“This case is about misguided overreach. It is unavoidably about whether people who own property are allowed to use it … We contend the Percy brothers exercised a farming exemption in the local tree removal law to clear the historic pasture behind their business and develop a Christmas tree farm.”

But Kolb said the brothers were “specifically told at least twice last year” that if they were to remove the trees, they needed a permit.

“(They) never came and got one,” Kolb said.

The brothers have not yet been fined, but Pattwell asked the township for a settlement figure, Kolb said.

The township’s settlement offer is roughly $450,000. Under the ordinance, the Percys could have received a credit to reduce the fees by paying into the township’s tree fund and planting new trees, Kolb said.

The two own a commercial trucking company in Canton Township, as well as Montgomery Farms, a tree specialization company that operates in Albion and Hillsdale, Pattwell said. The trucking company, A.D. Transport Express, has been in the township since the late 1980s.

The Percys’ options include: Paying money into the tree fund to plant trees across the township, planting replacement trees or a combination of both, Kolb said.

The Percy’s are working to resolve the matter, Pattwell said, but are prepared to take it to court. Additionally, they are moving forward to plant 2,500 Christmas trees on the property they cleared, with 1,000 planted thus far.

The ordinance states:

“Landmark tree replacement: Whenever a tree removal permit is issued for the removal of any landmark tree with a (diameter at breast height) of six inches or greater, such trees shall be relocated or replaced by the permit grantee. Every landmark/historic tree that is removed shall be replaced by three trees with a minimum caliper of four inches. Such trees will be of the species from section

Replacement of other trees: Whenever a tree removal permit is issued for the removal of trees, other than landmark/historic trees, with a (diameter at breast height) of six inches or greater (excluding boxelder (acer negundo), ash (fraxinus spp) and cottonwood (populus spp)), such trees shall be relocated or replaced by the permit grantee if more than 25 percent of the total inventory of regulated trees is removed.”