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Tree preservation efforts in local communities

By Stacy Gittleman

The next time you find yourself in a wooded area, or step beneath the shade of a mature neighborhood tree on a hot summer’s day, observe the change. The air feels instantly cooler and cleaner, and there may even be a breeze.

That’s no coincidence. More than an aesthetically pleasing feature on a piece of property, the branches and canopy of a mature tree absorb carbon, emits clean oxygen and can cool the ground below up to nine degrees.

Matching the expanse of a mature tree’s leaf canopy above is its extensive root system below. Tree roots prevent soil erosion and keep stormwater runoff in place instead of overburdening stormwater and sewer systems that can lead to flooding. According to the Arbor Day Foundation, depending on size and species, a single tree may store over 100 gallons of water, until it reaches saturation in a rain event with up to two inches of precipitation. When multiplied by the number of trees in a community, this interception and redistribution can be significant. It is estimated that the urban forest can reduce annual runoff by two to seven percent. This reduction can be converted into dollar savings due to the use of smaller drainage and artificial retention systems. When trees are combined with other natural landscaping, studies have shown that as much as 65 percent of storm runoff can be reduced in residential developments. Sometimes even 100 percent of rainfall can be retained on site.

These powerhouses are vital parts of the green infrastructure that towns and cities need in order to be climate change resilient. And for practical, environmental and sentimental reasons, just as we notice when we are in the presence of trees, we feel their absence once they are cut down for development.

Since the 1970’s, municipalities have been trying to balance the need for growth and development with the need to preserve tracts of forested land, maintain the health of heritage and landmark trees in public parks or along right of ways, or even limit how many trees a private landowner can cut down on their own property.

Ordinances are as diverse as the communities they serve, and therefore no two are alike. State forestry officials estimate that about 400 Michigan municipalities have adopted preservation ordinances designed to protect and maintain existing trees on public property and right of ways and encourage new plantings both on public areas and private properties. In general, within the ordinances are regulations for restricting cutting down a tree when it reaches a certain girth in diameter at 4.5 feet high, referred to in ordinances as diameter at breast height (DBH), signaling a tree has reached enough of a state of maturity to hold economic and environmental value. Municipalities that have tree ordinances stipulate that if a mature healthy tree must be taken down, it must be done through a permit process, and the party removing the tree must replace it by planting trees that measure up to half of the cut tree's girth or providing fees to a community’s tree fund at an arbitrary value deemed by the municipality.

In a slight variation, municipalities that have more forested land have adapted woodland ordinances to protect contiguous swaths of forested land regardless if they are on private or publicly owned land.

Most tree ordinances concern themselves with trees located primarily on public property, but some do have detailed regulations on limiting how many trees a homeowner or property owner can remove. And lately, that’s where municipalities are running into trouble. Ordinances are beginning to become contested in some municipalities when private developers deem ordinances to be too strict and bump up against their rights.

But having a standing tree or woodlands preservation in place qualifies a community to be categorized as a Tree City USA by the National Arbor Day Foundation, a program the organization launched in 1976 to promote tree stewardship. In 2020, the foundation designated 130 Tree City USA communities in Michigan – an increase from 122 in 2019.

According to the foundation, healthy urban forest resources help absorb noise pollution from traffic by 40 percent, neighborhoods with tree-lined streets are up to nine degrees cooler than those without, shade from trees reduce energy costs by 25 percent and communities with mature trees have higher property values.

Lately, the strength and viability of tree and woodland ordinances have come into question, and have even been contested in court, in Michigan after two developments – one on the property of Henry Ford Hospital in West Bloomfield Township, and the other on a tract of proposed land to be developed in Canton Charter Township in Wayne County. As municipal litigators ponder what this can mean for the status and strength of their current ordinances, expert arborists, foresters and landscape architecture consultants see these recent developments as an indication that ordinances may need to mature and change to adapt as communities everywhere work out the balance between preserving green and open space versus bringing needed healthcare, business and tax base revenue into town for economic viability.

Kevin Sayers, urban forestry coordinator at the Michigan Department of Natural Resources (DNR), is the sole urban forestry manager in the state. Part of his multifaceted job includes consulting with municipalities on developing preservation ordinances.

Sayers said that while larger towns and cities have such ordinances, more rural townships may not, but it’s still something to consider for better management of their park spaces and open space.

“As you can imagine, among these kinds of ordinances, there is a high variable in degree and type,” Sayers explained. “Some communities are more likely to have landscaping standards that pertain to trees and forestry. These are not what I’d call a traditional public (street/park) tree ordinance, and they are usually contained in their zoning code. On the other hand, many communities (e.g. cities and villages) have designated sections in their municipal ordinances specific to public trees, tree care, authorities, and penalties.”

Sayers said communities with woodland ordinances focus on protecting and preserving undeveloped woodlands as well as protecting landmark and heritage trees that have implications across both public and private property. Woodland ordinances are less common but may be found in various local government ordinances. Sayers said these often become a point of conflict between municipal government and private property owners.

Sayers continued that while tree ordinances may protect an urban or suburban forest canopy, a woodlands ordinance can preserve acres of remaining contiguously forested land and is valued for larger-scale nature and wildlife habitat preservation, water quality and stormwater runoff. When it comes to tree or woodland ordinances, he stressed that there is a reason and importance for both.

Sayers cautioned that municipalities with woodland ordinances must walk a thin line between preservation and growth.

"You cannot put too many controls on growth by virtues of these ordinances because that is not what they should be used for," Sayers said. "When they do, they often fail. Both types of ordinances are intended for preserving a community's tree canopy when growth is happening. An ordinance needs to recognize that growth is going to happen and needs to address the question, ‘How does a community work within that growth process to preserve trees or woodlands to the greatest possible extent?’ Sometimes, I think communities see tree and woodlands ordinances as a way to prohibit development. That’s a hard thing to fight. The things we bring into communities that promote economic growth and resources, that’s how we became the communities we are now.”

Sayers said there is a lot of recognition of the benefits of trees, and this is becoming reflective in local policies.

“There's a need for them in helping communities build sustainability and adapt to climate change," Sayers said. “Many communities are beginning to realize that resiliency is where it’s at. Tree plantings can build resilience by retaining stormwater, offsetting heat islands in urban areas, and just having a population of healthy, vibrant and extensive and equitable tree distribution across every community.”

West Bloomfield has had a woodlands conservation ordinance within its zoning code in place since 1976. That’s why environmentalists and residents have expressed extreme disappointment that the township’s planning board went against the recommendations of its environmental commission to approve a proposal from Henry Ford Hospital West Bloomfield to clear up to 18 acres of a stand of old-growth trees, some estimated to be up to 200 years old, to make way for a 192-bed mental health hospital.

Henry Ford Hospital came to the environmental and planning board to request rezoning for the project in 2020. The project is already underway, and the hospital is currently clearing about 15 acres on the hospital's ground that borders Maple Road, Drake and 14 Mile Road to make way for the building, as well as an emergency access drive. As part of the zoning permit approval, the hospital , along with the township, will preserve another adjacent 16-acre stand of old-growth trees in perpetuity.

Of the most disappointed is Anthony Spokojny, who quit his chairperson post on the township’s environmental commission in protest in February. He had served the township since 1988, when the body was first formed as the West Bloomfield Wetlands Board. In April, another member of the commission also resigned in protest.

As Spokojny mourns the loss of the old-growth trees he said they could have been saved, and the much-needed mental health facility could still have been developed if the hospital chose a proposed alternative plan to shift the proposed building’s footprint. Spokojny said this is the first time the West Bloomfield planning board did not honor the recommendation of the environmental board.

“In this case, Henry Ford had already developed 25 percent of the trees on the West Bloomfield property, a piece of land they knew was protected under our ordinance,” Spokojny said. “And they came before the environmental commission, asking to take down another stand of trees which brought them up to 60 percent. In the history of the West Bloomfield woodlands ordinance, there has never been a recommendation of the environmental commission that was rejected by the planning commission. This is the first time any developer has approached the township asking to remove more than 25 percent of the trees on their property.”

He continued, “Those trees (where the mental health facility will be built) were already subject to the woodlands ordinance and were already protected. All (West Bloomfield) had to do was stand our ground, even at the risk of a lawsuit, if (Henry Ford) thinks we are pressing something on them as property owners that is unconstitutional. But Henry Ford purchased this property knowing there was a woodland and a wetlands ordinance in place, and they knew the limitations of potential development there.”

Amy Neary, West Bloomfield Director of Planning and Development Services, explained that a developer is allowed to deforest up to 25 percent in a regulated area, and can go up to 40 percent if a project meets certain criteria and needs to make way for necessary roads, buildings or utilities as identified in the ordinance and is reviewed and approved by the township.

"The planning commission made its decision after Henry Ford explored other alternatives (for where to place the building) and deemed it was appropriate for them to take the additional woodland in this location under this provision of the ordinance,” Neary said. “Henry Ford approached the township two years ago, and there was time for public comment and public hearings held at the time, but we approved the hospital’s request to rezone the area for use to build this behavioral health hospital, and the township granted the hospital permission.”

According to Henry Ford Hospital officials, the hospital led a two-year period of engagement with West Bloomfield Township leadership, including the planning commission, environmental commission, and township board; the state of Michigan environmental agency (EGLE), as well as engaging surrounding neighborhood communities in open-to-the-public meetings. The facility is slated to open in 2023.

In an email to Downtown Newsmagazine, Denise Brooks-Williams, senior vice president and CEO, North Market, Henry Ford Health stated: “The need for mental health services has reached crisis levels across our nation. We are honored for the opportunity to increase access to those services and eager to make this a reality for the communities we serve. When we acquired the land in the 1980’s, we committed to being good neighbors and mindful stewards of the land. Over the years we have taken a thoughtful approach to our development plans.”

Brooks-Williams said the development meets all state environmental regulations, and of the 40 acres rezoned for this project, it is using just 15.

The statement continued: “Robust conservation efforts associated with this project include the permanent preservation of more than 17 acres (42 percent of the property) of woodlands and wetlands through a conservation easement, and positioning the building to minimize the impact on natural features.”

Another case that is troubling municipal litigators, as well as ordinance officials, is taking place in Canton Charter Township. Canton’s tree ordinance was met head-on in 2016, when Texas-based F.P. Development, which owns a 62-acre tract of undeveloped land, was approved by the township to split the parcel in two. Right down the dividing line of the parcel was a Wayne County-owned drainage ditch that was clogged with brush and fallen trees. When the county refused to clear the ditch, F.P. Development hired a timber company to remove the trees – but did not get a permit from Canton to do so. Canton in turn fined the developer $47,898 to pay for the cost to replant 187 trees either on their property or elsewhere in the town.

Instead, the developer refused to pay the fine and took Canton to court.

On Oct. 13, 2021, the U.S. Sixth Circuit Court of Appeals in Cincinnati sided with the developer in the case and found the township’s tree ordinance to be unconstitutional. After accruing legal bills that amounted to $72,439, Canton officials have abandoned pursuing the case further at the federal level but will continue the fight in the Michigan Court of Appeals.

In a statement released to Downtown Newsmagazine, Canton Township Supervisor Anne Marie Graham-Hudak said though she and township officials are disappointed in the court’s decision, they will be “working to amend the ordinance to comply with the court’s ruling while still protecting the vibrancy of our community.”

“Trees and green-space are vital to the quality of life in our community,” Graham-Hudak stated. “Trees mitigate flooding and soil erosion, produce oxygen, provide a natural habitat for wildlife and contribute to an aesthetic that makes Canton a place where people want to live, work and enjoy the natural landscape.”

Graham-Hudak stated that the township is now reviewing its zoning ordinance in a place that was historically a farming community, where trees were used to mitigate stormwater and flooding and alleviated the severity of soil erosion.

“We are now reviewing our zoning ordinance from a broader planning perspective to ensure that we can continue mitigating flooding and soil erosion, as well as other preservation efforts. Other communities across Michigan have similar green-space preservation ordinances that may be impacted by the court’s decision.”

Jeff Kragt is an Oakland County municipal attorney who has been closely watching the case with concern along with his colleagues in the Oakland County Municipal Bar Association.

Kragt said that the federal decision leaves municipalities guessing about the effectiveness and strength of their tree ordinances and preservation codes, even with the court acknowledging the power and effectiveness of tree ordinances as a viable authoritative tool for land conservation.

“The court just decided that each case needed to be individualized and there could not be a blanket formula for determining what the cost of each replacement tree should be,” Kragt said.

"Within municipal attorney circles, we are puzzled about what the court is indicating to us in its decision. Tree ordinances have been in place throughout Oakland County for a long time and have served a great purpose in maintaining regulating tree canopies, soil erosion and enhancements to quality of life. The court’s decision in the Canton case removes a lot of the teeth of what has otherwise been a commonly accepted way to regulate what happens to trees in a community. “

Highland Charter Township Planning Director Elizabeth Corwin, who is responsible for ordinance development and administration, said though she has not completely reviewed the details of the Canton or West Bloomfield cases, she does believe they will have a “chilling effect” on such ordinances.

With 25 percent of Highland’s 36-square mile footprint already protected within the state and county park system, Corwin said its 10-year-old tree ordinance may be more lenient than other municipalities. The main intention of the ordinance is to maintain the health of the township’s tree canopy by keeping invasive tree specimens in check and replacing them with a diverse culture of different native and deciduous species that are resistant to pests and disease.

In addition to the ordinance, Highland also has a natural features inventory and stewardship plan which requires developers to take a detailed stock of the natural features of a parcel of land proposed for development. Site development plans must include the size, condition, and species of trees. Trees that are 18 inches DBH (diameter at breast height) and over need to be marked and the developer must indicate whether they will remove, relocate, or keep trees that are six inches DBH or greater. Also, if a developer wishes to plant a specimen tree, it must be a certain distance from a wooded lot to minimize disease, pests, and encroachment into the native stand of trees.

Corwin said that the township's rules on what trees to cut down do not prohibit clear-cutting on a parcel of land, even with mature trees, if the developer can prove that they can keep a substantial portion of the tree canopy intact.

“We ask developers to explain their design choices and would never outright deny a site plan just because they were taking out even big significant trees,” said Corwin. “We might negotiate with the developer to protect the trees, but we would not outright deny their project. We just don’t have that in our ordinance.

"The township does not see a design priority to prevent clear-cutting, but the ordinance is there to make sure that at the end of the day, there's the appropriate tree cover on the site,” she continued. “Because we have so much protected green space in our parks, we couldn't get much of an interest in having a strict regulations on removing trees. There's a tendency around here to think of trees as almost a crop, that it's okay to take out a tree and put back a tree. It is a real challenge to try to ramp up enforcement on regulating the cutting down of trees, you can send the developer a letter, but it very seldom goes beyond issuing them a ticket.”

Ultimately, Corwin said the township trusts property owners to do the right thing, and it is a rarity if a violation will wind a developer in court. Instead, if a developer goes against its approved plans – such as removing trees that were slated to be preserved or lets other features of the property degrade – the township holds that violation against them as leverage.

"When property owners do take things down that goes against their approved development plans, it is a challenge because you would then have to go after them in court for non-compliance. We've had mixed success in that regard and therefore we don't have much will to (bring cases to court.)."

Moving closer into more urban communities around metro Detroit, tree ordinances are more about regulating and maintaining trees on public lands and right-of-ways. Most communities limit the percentage of trees a homeowner can remove on their property without attaining a permit, or when the town arborist can enter private property to inspect or remove a tree.

Lauren Wood, director of public services for the city of Birmingham, said the differences between its tree preservation ordinance, passed in 2003, and West Bloomfield’s woodlands ordinance is, except for regulations on trees along the 25-foot wide envelope of a property, it does not dictate what trees can and cannot be removed on homeowner property.

Instead, Wood said Birmingham focuses its tree preservation efforts on its vast inventory of trees on right-of-way streets, parks, and school grounds, reflected in its 2012 Tree Management Plan.

Wood said the city is updating its public tree management plan for release in 2024. The 2012 report reflected how the city had been taking inventory of the health and species of 19,000 city trees. Wood said the revamped plan will include 5,000 additional trees in parts of town that were not included in the original survey.

“The 2012 plan provided us with an opportunity to better determine and keep track of tree removals, pruning, and planting schedules,” Wood explained. “The inventory also revealed what trees we had an overabundance of – such as various types of maples – and how to diversify our canopy by adding species such as disease-resistant elms, linden, and rubber trees, as well as the Kentucky coffee tree.”

Wood mentioned that Birmingham in 2022 will celebrate its 44th year of having a Tree City USA distinction and celebrated this recognition with a tree-planting program at Pembrooke School on Arbor Day, April 29.

"Even before putting this plan in place, green infrastructure has been important to Birmingham,” said Wood. “What the management plan does is it provides us with a constantly updated inventory of the health and condition of every public tree and helps us evaluate and prioritize which trees to care for. And that’s made our urban forest healthier and more attractive in the last 10 years.”

Wood added that many of the city’s silver maples are reaching the end of their lifespans and are in decline. To compensate for this, they are being removed and replaced with disease-resistant trees that will eventually grow to bolster the canopy.

Wood said on occasion a private resident may object to a tree being planted on a right-of-way near their property, or may object to the city taking down an aging tree such as silver maple, which m