Author: Daniel J. Dingeman

The ability to remove trees in connection with land development is limited by various types of woodlands regulation. In the development context, this regulation focuses on not only on the restrictions on tree removal, but also on controlling soil erosion and sedimentation. The latter focus, which will not be discussed in any detail here, involves regulation applied throughout the state in the form of specifications and permit requirements in connection with “earth change” that contributes to soil erosion and sedimentation of the waters of the state. [1]

Instead, the primary focus of this article will be discussion of local ordinances seeking to directly restrict tree removal in connection with land development. This type of regulation has been controversial in certain instances but has not generated significant appellate court litigation. Unlike the case of local wetland regulation, there are no Michigan statutes that expressly and specifically authorize the enactment of woodland ordinances. Rather, such ordinances have typically been enacted under the zoning enabling authority, being either incorporated as part of the comprehensive zoning ordinance or enacted as a free-standing zoning regulation. Ordinance preambles often declare the manner in which woodland regulation in connection with land use and development is an important part of natural resource preservation and critical to the protection of the public health, safety, and welfare.

Although the basic authority to regulate may be clear, the details of regulating woodlands can be difficult. The regulations must be unambiguously formulated in the ordinance and may not unreasonably restrict land development.

Woodland Ordinance Regulation

Many Michigan cities, villages, townships, and counties have established landscape requirements compelling the planting of trees in connection with development. Only a small portion of such communities, however, have enacted woodland ordinances restricting the removal of trees—generally communities in rapidly developing metropolitan areas.

Often times, such woodland ordinances were enacted in response to a developer’s simply clear-cutting all or nearly all of the trees on a property to facilitate development, without regard to the size or public interest value of the trees and irrespective of whether the removal of all trees was necessary in order to develop. Today, most—but not all—developers recognize the value of mature trees and limit removal as a matter of economic, with or without woodland ordinances.

Woodland ordinances vary considerably from community to community. There are, however, two fundamental types of regulation embodied in them. One category of woodland ordinance basically seeks to encourage or require maximum tree preservation on areas not required to be disturbed as part of the development process. Under this type of regulation, for the most part, the right to fully develop property is not materially impeded. Subject to negotiations between the property owner and community representatives relative to road and lot (or building) orientation in relation to tree stands, density of development is only minimally impacted.

The process of complying with this type of ordinance, however, which often includes the preparation of a tree inventory for the property, can be costly. In addition, planning and environmental officials may strongly advocate alterations in the layout of an initial plan of development submitted by a property owner with the objective of saving important stands of trees or even a single tree if it has significance. Yet, the most critical feature of this type of regulation is that it generally does not set aside large areas of property for preservation that may not be developed and may not be included in calculations for density or intensity of use.

The second category of woodland ordinance defines woodlands based on the premise that unique plant and animal functions and activities occur within a stand of contiguous trees occupying a certain minimum forested area. This type of ordinance seeks to conserve existing forested areas within the community to the degree feasible, recognizing that if all of the forests within the community are developed, the functions and activities unique to such areas will no longer take place anywhere in the community. Thus, this type of ordinance treats a woodland in the same conceptual manner as a wetland: That it is a natural resource that should not be developed out of existence.

Obviously, it would be an unrealistic objective to preserve every square foot of woodland in a community. The most significant issue arises when the extent of woodland coverage on a property (situated entirely or only partially on the owner’s land) leaves insufficient non-woodland area to be developed. In this situation, a property owner must apply for a permit to remove at least a portion of the woodland on the property in order to provide enough land to allow reasonable development. The process and standards to be applied in this exercise must be specified in the ordinance. At the end of the day, the caveat applicable to the administration of this type of ordinance is that reasonable use of property must be permitted and, in cases in which development is severely impeded, consideration may need to be given to preserving only the minimum forested area capable of functioning as a woodland resource. There may be circumstances in which the feasibility of preservation even to this extent will have to be analyzed based on the constitutional limits prescribed by the judicially created tests under the Takings Clause of the United States Constitution.

Recommendations

Prior to seeking a permit, a prospective applicant should attempt to visit with the community employee or consultant who will be the one to act on the application or make recommendations to an administrative body. This person will normally be in a position to provide valuable insights into filling out the permit application so as to increase the efficiency of the application and review process. As in the case of wetland permitting, for projects of any appreciable size or controversy, a property owner should give serious consideration to retaining the services of not only an attorney, but also a woodland expert. For all other projects, a general real estate attorney, working with the woodland expert, should be in a position to work through the process.

To learn more about woodland regulation in general or if you would like assistance in complying with your local ordinances, feel free to contact the experienced real estate attorneys at Dingeman & Dancer, PLC.