It’s my tree. Why can’t I cut it down?

This is Planet Money from NPR. The day that Sarah Bond finally became a homeowner, she had almost given up. It was 2021, the housing market was red hot, she and her husband Joel kept getting out bid. They were starting to think maybe their family would never have a place they could make their own. Place where she and Joel could plant blueberry bushes. Place where their daughter JoJo could raise baby ducks and chickens. Then she got a call from her realtor. She left a voicemail and she said congratulations and I was like, "What?" I just started like, I was like, "No way." I told my husband he was like, "Are you serious? Are you kidding?" The house that was now their house was white with black trim, two stories tall. It was nicer than she ever thought she could afford and it was located in their dream neighborhood on a tree-lined street in southwest Portland. She remembers when they first went to visit the area. As soon as we open the doors of the car, we just hear an eruption of children laughing and screaming and there are just all these kids rolling down the hill and they're just tumbling all over each other and it's just magic. Sarah's favorite part about their new home was the huge yard. She used to work at a garden center and she loved how many plants and trees were grown around their home. But a week or two after they move in, Sarah's in the backyard. When she realizes that one of the trees is growing at a kind of weird angle. It's this huge Douglas Ferds like a hundred feet tall and it is so big that standing in the backyard, she couldn't even see the top of it and it is leaning towards the house. When I first noticed the lean, my immediate feeling was like, "Oh my gosh, this should have been taken out like yesterday." Like this is really scary. It was like this tree of damocles just looming over them, Sarah kept picturing it falling. This tree wasn't going to like fall and you know, put a hole in our roof. It was going to fall and we would be lucky to walk away. Sarah and Joel start looking into how to remove a hundred foot tall tree from your backyard. They find out that they need to get approval from the city because in Portland, like in many places, any time you want to remove a large tree, you have to apply for a permit. And Sarah's like, "Well, clearly this tree is dangerous, so let's just get this permit." They go online, fill out the forms. Pretty soon a city inspector comes to look at the trees and a couple of weeks later, Sarah and Joel get the letter. I have a memory of my husband like walking into living room and saying, "Oh, they denied our permit." I was like, "What?" The city had determined that the leaning tree looked healthy and normal and that removing the tree would significantly affect neighborhood character. So the city would not let the bonds cut down their tree. It was so surreal and like I couldn't, I was in the state of disbelief for a long time. Sarah's like, "Wait, this is not a city tree. This is our tree in our own backyard." I don't understand how we are the owners of the tree. If we have no power over making a decision about it, it makes no sense. In recent years, hundreds of towns and cities in America have passed laws to protect trees, to preserve the urban canopy for the good of the neighborhood. And these laws are redrawn the line between what belongs to the property owner and what belongs to the community. Hello and welcome to Planet Money. I'm Jeff Guau. And I'm Amanda Aronchick. Here in the United States, the general rule is that towns and cities have a lot of power when it comes to land and how people use it. Towns and cities can pass zoning laws, they can ban certain types of buildings, they can even require houses to look a certain way. But can a city actually stop you from cutting down a tree in your own backyard? Today on the show, when does a zoning law go too far? And how the fight over tree laws is changing the answer to that question. Sarah Bond didn't know it at the time, but when she bought her house with this tree of damacles looming over it, she was stepping into a larger battle over what ownership and property rights even mean, a battle that has been escalating over the last few decades. And the front line of this battle involves a tree law over a thousand miles away in the township of Canton, Michigan. Canton is about 40 minutes west of Detroit, picture your classic American suburb, lawns or neat and tidy streets have names like Jerry Woodlaid and Beachwood Drive. Canton is, it's basically the ninth largest community in Michigan. It's got about a over a hundred thousand people. Anne Marie Graham-Hudak is the township supervisor, she's like the mayor. She is Canton's number one fan, she's got this real earnest energy. We have about 414 miles of roads, we have 1,100 acres of parks and we have, yeah, that's a tree. And how important are trees to the people of Canton? Oh, they're very important. Are you kidding? Yeah, the town flag, which was flying outside Anne Marie's office, has a big green tree on it. But as Canton, Michigan grew over the decades as developers put in more strip malls and suburban subdivisions, the town was losing more and more of its trees. I got to a point in 2006 when the town's leaders decided to do something. You know, if people can come and just start raising fields of trees and we had no say in it, that was scary to us because we have so many wetlands, we have so many natural areas and we did not want a town that turned into all concrete. Anne Marie says, there are a lot of reasons why trees are better than concrete. Trees filter the air and provide shade. Their roots help absorb stormwater and prevent floods. Studies have shown that trees can even save lives by keeping neighborhoods cool on hot days. And so in Canton, we want to keep that balance. We're very, very cognizant of the health of the community and we were irresponsible for keeping that healthy community. So the township board passed an ordinance to protect the community by protecting the trees. Anyone who wanted to cut down a large tree now needed to get the town's approval. They had to get a permit. Anne Marie says it's just like how you might need an electrical permit to rewire your garage, like the township wants to review your plants because if your shoddy wiring sets your garage on fire, that affects your neighbors. Everything we do affects everybody and unfortunately, you know too many people think of only what do I want? What's, you know, me, me, me, but you don't live isolated in a bubble. Anne Marie says these tree permits were all about protecting the neighbors too. The town wanted to hold people accountable for how removing a tree would hurt the community by taking away shade, increasing their risk of floods. Now in Canton, this tree permit ordinance mostly applied to developers, not homeowners. And the township would usually grant developers the permit as long as they agreed to either plant a replacement tree on the property or pay a remediation fee. That fee, usually a couple hundred dollars per tree, would go into the township's tree fund. This is a pretty common system in a lot of towns and cities these days, from Dallas to Denver to Mobile, Alabama. A lot of these places have similar laws requiring people to compensate the community when they cut down a tree. And in Canton, Anne Marie says that the system worked pretty smoothly. The township issued thousands of tree permits and along with developers, they replanted thousands of trees. Until that is the spring of 2018. That is when the township discovers that, on the edge of town, an entire forest has secretly gone missing. The only reason we found out is because the neighbor told on them. Someone had cut down all of these trees. So the town descends an official to investigate, and what they find is just mud and tree stumps. Property owners out there have clear cut about 16 acres of woods. Just like that, no permits, no notice, nothing. The town leaders are shocked. Marie knows these property owners. A lot of people do. They're local businessmen. One of them owns a sign company. The other two run a trucking company. Companies that had been here for a long time, then they knew the rules. The town calculates that more than 1,500 trees had been cut down. They tell the property owners, okay, what is done is done. Now you're going to have to replace all these trees or pay the fee. For 1,500 trees, the fee would come out to around half a million dollars. And they threw a fit and instead of saying, oh, well, we'll pay this much. Or how about we plant these trees, whatever they hung up and they call the lawyer. And then all of the losses started. This is how Canton, Michigan, ends up at the center of a major legal battle. A battle over not just the tree protection law, but about the limits of what cities can even do when it comes to permitting and zoning. This dispute makes the local news. And from there, it quickly attracts the attention of a lawyer named Chance Weldon. Chance had been looking for a case just like this. I'm the director of litigation at the Texas Public Policy Foundation. And that means that I sue the government for a living, which isn't absolutely sweet gig. The Texas Public Policy Foundation is this free market think tank. And Chance is a constitutional lawyer. He's one of those constitutional lawyers who cares a lot about property rights. He says as a kid growing up in Houston, he learned a lot about what it means not to have property rights. As parents were renters, they didn't own their own home. And the one thing that always stuck out to me is like, you couldn't have a tree house, you couldn't change things in the yard because you had to ask the landlord first. And the thing that distinguished to me ownership from renting is not having to ask the landlord And so anytime I see the city come in in acting ways that remind me of a landlord, it just sets off by alarm bells if somebody's property rights are being violated. Around 2018, chances property rights alarm bells were going off on account of these tree protection ordinances. He'd watch them pop up all over the country, including where he lives in Texas. To him, these towns were pretty obviously violating people's property rights. And okay, now the idea of property rights seems simple, right? They're what you get to do when you own property. Typically that means that I can sell it, or I can use it, or I can change it, or I can build something on it. But there are limits to your property rights. You only get to do what you want up until it affects your neighbors. So cities can tell you, for instance, you can't put a slaughterhouse next to a school yard. And before you build anything, they can make you get construction permits and noise permits and environmental permits. And chance agrees that a lot of these local regulations are important. But he and the folks he works with think that modern zoning and permitting laws have gone too far. Things a lot of them are unconstitutional, that they violate what is called the takings clause of the Fifth Amendment. So the takings clause says that the government cannot take private property, except for public use and with just compensation. The basic idea here is the government can't force you to provide your property to the public for free. So traditionally that is meant that the government can't physically take your land without paying you for it. But there's also something called a regulatory taking. The spring court has said that when the government puts too many regulations and restrictions on a piece of property, that's the same as taking it away. And so then the question becomes when has the government gone too far by regulating what you can do on your property that it's effectively taken it away? Now for more than 100 years, some people have been trying to argue that zoning and permitting laws violate the takings clause. They're like, if the city is going to tell me what I can or can't build on my own property, it's basically acting like the city owns my property. But mostly those arguments have not been that successful. Yeah, by and large, the rule is that cities these days mostly get to do whatever they want when it comes to zoning and permits. They can even regulate the look and feel of a neighborhood. They can force you to paint your house a certain color because a tacky looking house hurts the community. But there are some limits and chance the lawyer wants to test those limits. When he hears about the fight over the tree permits in Canton, Michigan, he reaches out to the attorney for the local property owners and offers to help them out for free. Eventually, in 2021, one of those cases reaches the 6th Circuit Court of Appeals, which is one run below the Supreme Court. One of Chance's main arguments is based on this old case from the 1980s, where the Supreme Court said that the government can't force someone to put an unwanted cable box on their property. That that is an unconstitutional taking because the government is taking away your right to use a part of your property. So if you think about if the government just came and stood on your property and occupied it, that part of the property that they occupied, they've really just taken possession of it. What you're saying is, if you can't cut down the tree, then is it still your tree? Does it just become the government's tree? Yeah, that's the theory. And they're just basically forcing you into this mandatory physical occupation of your property. The government should pay you tree rent. Yes, that was the argument. If they care so much about the tree, then they should have to pay for the use of the property. From Chance's perspective, the township of Canton is taking advantage of property owners by requiring them to keep these trees around for the benefit of the community. And that should be unconstitutional. The township was like, no, this isn't about trying to force property owners to provide a benefit for free. It's because when you take down a tree, that makes flooding worse. It makes neighborhoods hotter. It harms the community. Now, the 6th Circuit did not quite buy Chance's argument that this was an unconstitutional occupation of their property, but Chance also had this clever backup argument. He was like, okay, if the problem here is that when someone cuts down a tree that hurts the rest of the community, fine, but not all trees are the same. And this tree ordinance in Canton didn't take into account, whether it was a big tree that was getting chopped down that provided a lot of shade for people. Or a tree in the middle of nowhere that didn't benefit that many people in the community. And the Supreme Court has said that permit requirements have to be proportional to the harm the permit is trying to prevent unreasonable. Permit fees can be an unconstitutional taking. So Chance was like, whatever fee the township wanted to charge for removing a tree has to be related to that specific tree. And in this case, the township's one size fits all policy, valued his clients trees too high. So basically the half a million dollars total that the township was asking for too much. In the fall of 2021, the court comes out with their decision. And Chance wins on this narrower argument. The court says that the way Canton is doing its tree permits is unconstitutional, which means that the township needs to fix it. And Chance's clients, in the end, they don't have to pay the township anything. It's like, oh, man, not only does this solve the problem for my client, but it's going to open the door to expand property rights and protect property rights and attack a lot more of these permitting regimes. This is one of the most high-profile wins in a property rights case in a while. And Chance is excited because permit laws are one of the main ways that towns and cities restrict people's property rights. He thinks that this decision will make it easier to go after cities that charge too much for permits, maybe stop them for making too many unnecessary demands. For Ann Marie, the supervisor of Canton, the court's decision was a big blow. Did it surprise you that the township lost? Yeah, yeah, I didn't understand it. Ann Marie says the township board debated whether they should appeal this case all the way to the Supreme Court, but they decided that they had already spent too much money on these lawsuits. So they went back to the drawing board and last June, they came up with a new tree law. Now, the developers allowed to hire an arborist to determine the dollar value of the ecological benefits a tree provides. And that's the fee the developers can pay, instead of a fee that's been determined by the city, if they want to cut that tree down. What happened in Canton, Michigan, has set off some alarm bells among towns and urban planners, who are especially worried about the bigger picture of environmental permits and who should bear the cost of, you know, protecting and preserving the environment. But a case like this doesn't change the world overnight, and in the meantime, there are a lot of cities like Portland, Oregon, where even regular homeowners might not be allowed to cut a tree down. After the break, Sarah Bond and her family have to make a decision about what they are going to do about the giant tree looming over their house, and what the city of Portland has to say about it. At first, Sarah Bond tries to convince herself that the giant tree leaning over her house is not as scary as it seems. She and her husband Joel would spend hours walking around the backyard, squinting at it, trying to picture what would happen if this tree fell. We were like, well, maybe it would just like miss the house, and then we would go to like another angle like, no, there's no way it's falling directly on top of the house. They think about going rogue and just cutting down the tree anyway, but if the city finds out they could be fined more than $10,000. So for almost three years, Sarah and Joel and their family try their best to settle in. They get a dog and two beautiful Siamese cats. But the tree is always looming. It is keeping them up at night. Any time we had wind, any heavy winds, we were like, we couldn't sleep. We hear like branches breaking or sticks cracking or whatever, and we'd like shoot up out of bed. Winter is the worst season for them. Portland can get these big ice storms. One Saturday morning in January, Sarah's daughter Jojo has a friend over, and there is a particularly bad storm. The wind gets up to 40 to 50 miles an hour, the power goes out, and the cats go into hiding. Two girls head upstairs to look for the cats. Sarah is looking out the backyard window. When all of a sudden, what she has been fearing starts to happen. I do remember the sound of wood splitting, like of it cracking as it was falling. It's like so loud. Sarah's memory of that day is a series of snapshots. One moment the tree is swaying in the wind. The next moment the tree is crashing down onto their house, right on top of where the girls had gone looking for the cats. I felt like I was under water because I was yelling and I was saying like, where is Jojo? But I don't even remember like having a voice. Sarah somehow reaches the top of the stairs. She sees that the roof has caved in. She's desperate to find her daughter. She sees Jojo's friend who is fine, but Jojo is still nowhere to be found. And I was just saying, where is Jojo? Where is Jojo? Jojo's friend is white as a sheet. She looks like she's in shock. And she didn't, she didn't even answer me with like words. She just like pointed in the bedroom. Sarah turns to the bedroom where she sees that the tree has cut through like an axe. It's landed directly on the closet, the closet where the cats like to hide. It's a pile of splintered wood now. Sarah is imagining the worst. But then she hears her husband Joel call out from the other side of the room. And my husband says. - I got her and his voice is like very, like he was in panic. - Jojo is there in his arms. - I was like, is she okay, is she okay? - Jojo is frantically looking her over. - She was covered in dust and there were like wood chips. - Sarah says she had never been so scared and so relieved. Jojo was okay. - She was like, I was fine, my hair. Is my hair okay? (laughs) - Everyone rushes out of the house. And as they're getting into the car, Sarah takes one last look at the tree that is collapsed on her house. - And the first thought that came into my head was we all lived and we never have to worry about that fricking tree again. - Okay, well, not quite. You see, one of the cats, Binks, is missing. Also, when Sarah calls the city to tell them, hey, this tree that I told you was gonna fall on my house, literally just fell on my house, they respond with something that takes her by surprise. - The city says you are going to need to pay for a retroactive permit. For the tree that fell, you know, to compensate the community, for the loss of the benefits of the tree, the lost shade, the lost canopy. So Sarah and Joel would either have to plant replacement trees or pay into the city's tree fund. For a tree is because the one that fell on their house, the fee could be at least $700. - This is the moment that sends Sarah over the edge. She and her family are now suing the city of Portland, not to challenge the constitutionality of its tree law, but just to get compensated for everything that they went through. Now, we did reach out to the city and they declined to comment 'cause the lawsuit is still going on. But the city has recently lowered some of its tree permit fees and it's now in the process of rewriting its tree protection laws. - It's been over two years since the tree fell on Sarah and Joel's house. They have now rebuilt it and actually just moved back in and march. - Sarah still has a hard time getting over what happened. She says it would be one thing if all of this had just been a freak accident, but she had asked the city to remove this tree and they'd said no. She still can't get over how the city made her feel. Like she didn't even own the house that she supposedly owned. - I felt very angry and annoyed. Like we were sold this idea of homeownership and we actually like didn't have control over it as much as I assumed we would. - Yeah. - You know, it's not like I wanted to put a giant pool in our backyard and you know, they wouldn't allow it. It was a safety reason and so that was like the part that was extra demoralizing. - The story of Sarah Bond versus the tree and the story of Canton, Michigan. These are two stories about, on one hand, the right to do what you want with your own property. Versus, on the other hand, your obligations to your community, to your neighborhood. It's the latest in this tug of war between property rights and zoning laws. For a long time, zoning laws were winning, but with the backlash over these tree laws, maybe property rights are gaining back some ground. - And Sarah says, "Look, she loves trees. She loves living in a neighborhood filled with trees. She just wished that the city had listened to her when she said that their tree was unsafe." - Now, there is one piece of good news. Their catbinks, who went missing during the storm, they didn't give up on him. They left a can of food for him in the basement. And about a week after the tree fell, they found him, shivering, a little dusty, but mostly okay. (upbeat music) - Hey, so we have got a special event for our NPR Plus supporters. If you couldn't make one of our book tour events back to April, you're in luck we are doing one more. And this time it is a live virtual event. It's on Thursday, June 25th at 3 p.m. Eastern. I'll be there, the main author of our book, Alex Myassi, will be there, and we will have some special guests. If you've already joined NPR Plus, we'll tell you how to register for the event in an upcoming bonus episode. If you haven't joined yet, make sure you're signed up by June 24th to get the invite. Just go to plus.npr.org. Again, that's plus.npr.org. Signing up is a great way to support the show, to support NPR, and to support independent non-profit journalism. See you there. - This episode of Planet Money was produced by James Sneed and Emma Peasley. It was edited by Jess Zhang, fact-checked by Vito Emanuel, and engineered by Robert Rodriguez and Cino Lafredo. Alex Goldmark is our executive producer. A special thanks to Professor Richard K. Norton at the University of Michigan, and also to Sophie Peel. She's a reporter at The Willamette Week, and she's been covering the tree law fight in Portland extensively over the past couple of years. I'm Jeff Glow. - And I'm Amanda Orancik. This is NPR. Thanks for listening. (upbeat music)