Michigan Brothers Face up to $700,000 in Fines for Removing Trees From Their Own Property

Published December 19, 2018

Two Michigan brothers potentially face nearly three-quarters of million dollars in fines for removing hundreds of trees from their property without the permission of Canton Township.

Gary and Matt Percy own a 16-acre parcel of land in Canton Township which they intend to operate a Christmas tree farm on.

Non-Native Grasses = Trees

The Percys own a commercial trucking company, A.D. Transport Express, in Canton Township, as well as Montgomery Farms, a tree specialization company in Albion and Hillsdale, Michigan.

The Percy’s attorney Michael J. Pattwell Pattwell told the Detroit News this particular parcel of land was filled with invasive plants, not primarily trees, including phragmites, an non-native invasive grass, buckthorn, a large non-native hedge, and autumn olive, a shrub originally from China, Japan, and India, which the brothers  needed to remove before repurposing the plot as a Christmas tree farm.

These non-native shrubs and grasses are considered noxious and invasive, in most states, including Michigan, because among other issues, they out-compete native plants for nutrients, light, and moisture, often degrade wildlife habitat, and lack “natural controls” like insects or diseases that would curb or limit their growth.

Existing Tree Ordinance

The problem for the Percys is Canton Township defines “trees” broadly, as “any woody plant with at least one well-defined stem and having a minimum diameter at breast height of three inches,” a definition which many of these invasive grasses and shrubs, as well as true trees on the property meet. As such, the township requires land owners to receive permission from the township before they can cut down existing trees, especially trees considered “landmark” or “historic,” trees.

Under the township’s tree ordinance, permission to remove trees can be obtained either through payment into the townships tree fund, or a commitment to replace, on-sight, the regulated material removed with trees of designated trunk diameters.

Despite warnings from Township attorneys they needed a permit to remove trees, the Percys did not seek township approval.

After the Percys cleared their land, the township had an arborist compare their parcel to an adjacent property with the similar forestry to estimate how many trees were removed. The arborist estimated 1,385 trees meeting the Township’s definition of trees were removed. Using this estimate, the township calculated the Percys could owe it more than $700,000 in fines for removing 100 trees considered landmark trees, at $450 per tree, with the remaining material calculated at $225 to $300 per tree in possible penalties.

Canton Township has yet to levy a fine on the brothers and instead offered to settle the case for approximately $450,000, which could be reduced by paying money into a tree fund to plant trees across the township, planting replacement trees, or a combination of the two.

Agricultural Exemption

The Percy’s property is zoned “heavy industrial,” and was used by its former owner as pasture to run dairy cattle.

Pattwell says the Percys did not seek permission to clear their overgrown parcel, because they believed it met an exemption in the townships tree-ordinance.

“[The township’s ordinance 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,'” Pattwell told the Detroit News. “The Percy brothers believed they were exercising a state and local exemption for farming when they cleared the land, …we are talking here about a parcel of former pasture land surrounded entirely by industrial activity.

“This case is about misguided overreach,” Pattwell is quoted by the Detroit News as saying. “It is unavoidably about whether people who own property are allowed to use it … [w]e 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.”

Pattwell says the Percys are trying to resolve the matter but are prepared to take it to court. In the meantime, they have already planted 1,000 Christmas trees on the property and are preparing to plant an additional 1,500 Christmas trees on the land they cleared.

Kenneth Artz ([email protected]) writes from Dallas, Texas.