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

Can the government stop you from cutting down your own tree? In many towns and cities these days, removing a tree now requires a permit. You might have to pay a fee, or promise to plant replacement trees. But sometimes, the city won't let you cut down the tree at all, even a tree in your own backyard. That's because trees are important for air quality, for flood control, and for public health. They help keep neighborhoods cool on hot days. But some think that tree protection laws have gone too far — that they might even be unconstitutional. On today's episode, it's the latest showdown between property rights and local zoning laws. Typically, towns and cities enjoy a lot of power when it comes to zoning and permits. They can ban certain types of buildings. They can make you paint your house a certain color. But can they make it illegal to cut down a tree? And what does it mean to "own" a piece of property anyway? Support: Planet Money+ https://n.pr/3HlREPz Read: Our book: Planet Money: A Guide to the Economic Forces That Shape Your Life https://lnk.to/i3AukBdD Our weekly longform Planet Money newsletter https://n.pr/3zrFvUBOur weekly Indicator round-up newsletter https://www.npr.org/newsletter/indicator Follow: Instagram https://n.pr/3FqLuwsTikTok https://n.pr/3sGZdrqYouTube https://lnk.to/iCVDaW3CFacebook https://n.pr/3h92GwS This episode of Planet Money was hosted by Jeff Guo and Amanda Aronczyk. It was produced by James Sneed and Emma Peaslee, edited by Jess Jiang, and fact-checked by Vito Emanuel. It was engineered by Robert Rodriguez and Cena Loffredo. Alex Goldmark is our executive producer. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

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• 0:17Speaker 01

  This is Planet Money from NPR.

• 0:23Speaker 02

  The day that Sarah Bond finally became a homeowner, she'd almost given up. It was 2021. The housing market was red hot. She and her husband Joel kept getting outbid. They were starting to think, maybe their family would never have a place they could make their own. A place where she and Joel could plant blueberry bushes. A place where their daughter JoJo could raise baby ducks and chickens. Then she got a call from her realtor.

• 0:45Speaker 03

  She left a voicemail, and she said, "Congratulations." And I was like, "What?" And I started like, I was like, "No way." And I told my husband. He was like, "Are you serious? Are you kidding?"

• 1:00Speaker 04

  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.

• 1:17Speaker 03

  And as soon as we opened the doors of the car, we just hear like, an eruption of children laughing and screaming. And there were just all these kids like, rolling down the hill. And they're just like, tumbling all over each other. And it's just like, magic.

• 1:33Speaker 02

  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.

• 1:42Speaker 04

  About 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 fir. It's like 100 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.

• 2:02Speaker 03

  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.

• 2:15Speaker 02

  It was like this tree of Damocles just looming over them. Sarah kept picturing it falling.

• 2:20Speaker 03

  This tree wasn't gonna like, fall and, you know, put a hole in our roof. It was gonna fall, and-- We would be lucky to walk away.

• 2:29Speaker 04

  Sarah and Joel start looking into how to remove a 100-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, anytime you want to remove a large tree, you have to apply for a permit.

• 2:46Speaker 02

  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.

• 2:58Speaker 03

  I have a memory of my husband, like, walking into the living room and saying, "Oh, they denied our permit." I was like, "What?"

• 3:07Speaker 04

  The city had determined that the leaning tree looked healthy and normal and that removing this tree would significantly affect neighborhood character. So the city would not let the Bonds cut down their tree.

• 3:20Speaker 03

  It was so surreal. And like, I couldn't, I was in a state of disbelief for a long time.

• 3:29Speaker 02

  Sarah was like, "Wait, this is not a city tree. This is our tree in our own backyard."

• 3:35Speaker 03

  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.

• 3:45Speaker 04

  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.

• 3:52Speaker 02

  And these laws are redrawing the line between what belongs to the property owner and what belongs to the community. Hello and welcome to Planet Money. I'm Jeff Guo.

• 4:02Speaker 04

  And I'm Amanda Orancheck. 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.

• 4:17Speaker 02

  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.

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• 5:50Speaker 02

  Sarah Bond didn't know it at the time, but when she bought her house with this tree of Damocles 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 1,000 miles away in the township of Canton, Michigan.

• 6:11Speaker 04

  Canton is about 40 minutes west of Detroit. Picture your classic American suburb. Lawns are neat and tidy. Streets have names like Cherrywood Lane and Beechwood Drive.

• 6:22Speaker 07

  Canton is, it's basically the ninth largest community in Michigan.

• 6:27Speaker 07

  It's got about over 100,000 people.

• 6:30Speaker 02

  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.

• 6:38Speaker 07

  We have about 414 miles of roads. We have 1,100 acres of parks and we have, yeah, lots of trees.

• 6:47Speaker 02

  How important are trees to the people of Canton?

• 6:49Speaker 07

  Oh, they're very important. Are you kidding?

• 6:51Speaker 04

  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.

• 7:06Speaker 02

  It got to a point in 2006 when the town's leaders decided to do something.

• 7:10Speaker 07

  You know, if people can come in 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.

• 7:23Speaker 04

  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.

• 7:39Speaker 07

  And so in Canton, we want to keep that balance. We're very, very cognizant of the health of the community and we're responsible for keeping that healthy community.

• 7:50Speaker 02

  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.

• 8:01Speaker 04

  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.

• 8:14Speaker 07

  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, me. But you don't live isolated in a bubble.

• 8:25Speaker 02

  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 the risk of floods.

• 8:36Speaker 04

  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.

• 8:55Speaker 02

  And 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.

• 9:08Speaker 04

  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.

• 9:18Speaker 02

  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.

• 9:27Speaker 07

  The other reason we found out is because a neighbor told on them.

• 9:30Speaker 04

  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.

• 9:49Speaker 02

  Anne 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.

• 9:57Speaker 07

  Companies that had been here for a long time, then they knew the rules.

• 10:00Speaker 04

  The town calculates that more than 1,500 trees had been cut down. They tell the property owners, OK, 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.

• 10:16Speaker 07

  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 called the lawyer. And then all of the lawsuits started.

• 10:25Speaker 02

  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.

• 10:38Speaker 04

  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.

• 10:48Speaker 06

  I'm the director of litigation at the Texas Public Policy Foundation. And that means that I sue the government for a living, which is an absolutely sweet.

• 10:56Speaker 02

  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. His parents were renters. They didn't own their own home.

• 11:15Speaker 06

  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 and act in ways that remind me of a landlord, it just sets off my alarm bells of somebody's property rights are being violated.

• 11:39Speaker 04

  Around 2018, Chance's property rights alarm bells were going off on account of these tree protection ordinances. He had watched 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.

• 11:55Speaker 02

  And, OK, now, the idea of property rights seems simple, right? They're what you get to do when you own property.

• 12:01Speaker 06

  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.

• 12:09Speaker 02

  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 schoolyard. And before you build anything, they can make you get construction permits and noise permits and environmental permits.

• 12:26Speaker 04

  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. He thinks a lot of them are unconstitutional, that they violate what is called the Takings Clause of the Fifth Amendment.

• 12:42Speaker 06

  So the Takings Clause says that the government cannot take private property, except for a public use and with just compensation.

• 12:49Speaker 04

  The basic idea here is the government can't force you to provide your property to the public for free.

• 12:55Speaker 02

  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 Supreme 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.

• 13:10Speaker 06

  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.

• 13:18Speaker 04

  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.

• 13:37Speaker 02

  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, you know, a tacky-looking house hurts the community. But there are some limits, and Chance the lawyer wants to test those limits.

• 13:58Speaker 04

  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 Sixth Circuit Court of Appeals, which is one rung below the Supreme Court.

• 14:14Speaker 02

  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.

• 14:30Speaker 06

  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.

• 14:40Speaker 02

  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?

• 14:49Speaker 06

  Yeah, that's the theory. And they're just basically forcing you into this mandatory physical occupation of your property.

• 14:56Speaker 02

  It's like the government should pay you tree rent.

• 14:58Speaker 06

  Yes, that was the argument, is if they care so much about the tree.

• 15:02Speaker 02

  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.

• 15:16Speaker 04

  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.

• 15:29Speaker 02

  Now, the Sixth 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, OK, 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.

• 16:01Speaker 04

  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 client's trees too high. So basically, the half a million dollars total that the township was asking for, too much.

• 16:30Speaker 02

  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. You know, not only does this solve the problem for my client, but it's going to open the door to... You know, expand property rights and protect property rights and, and, 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.

• 17:13Speaker 02

  He thinks that this decision will make it easier to go after cities that charge too much for permits, maybe stop them from making too many unnecessary demands.

• 17:20Speaker 04

  For Anne Marie, the supervisor of Canton, the court's decision was a big blow.

• 17:25Speaker 02

  Did it surprise you that the township lost?

• 17:28Speaker 07

  Yeah, yeah, I didn't understand it.

• 17:33Speaker 02

  Anne 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.

• 17:48Speaker 04

  Now, the developers are 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.

• 18:02Speaker 02

  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.

• 18:27Speaker 04

  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.

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• 20:14Speaker 02

  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.

• 20:29Speaker 03

  We were like, well, maybe it would just like miss the house. And then we would go to like another angle. Like, no, that's, there's no way. It's, it's falling like directly on top of the house.

• 20:38Speaker 04

  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.

• 20:46Speaker 02

  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.

• 21:01Speaker 03

  Anytime we had wind, any heavy winds, we were like, we couldn't sleep. We'd hear like branches breaking or sticks cracking or whatever and we'd like shoot up out of bed.

• 21:10Speaker 04

  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.

• 21:32Speaker 02

  Sarah is looking out the backyard window when all of a sudden, what she has been fearing starts to happen.

• 21:38Speaker 03

  I do remember the sound of wood splitting, like of it cracking as it was falling. Yeah. It's like, so loud.

• 21:47Speaker 02

  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.

• 22:00Speaker 03

  I felt like I was underwater because I was yelling and I was saying like, where is JoJo? But I don't even remember like having a voice.

• 22:11Speaker 04

  Sarah somehow reaches the top of the stairs. She sees that the roof has caved in. She is desperate to find her daughter. She sees JoJo's friend, who is fine, but JoJo is still nowhere to be found.

• 22:24Speaker 03

  And I was just saying, where is JoJo? Where is JoJo?

• 22:27Speaker 04

  JoJo's friend is white as a sheet. She looks like she's in shock.

• 22:31Speaker 03

  And she didn't, um, she didn't even answer me with like words. She just like pointed in the bedroom.

• 22:40Speaker 02

  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.

• 22:58Speaker 03

  And my husband says, I got her. And his voice is like very, um,

• 23:05Speaker 03

  Like, he was in panic.

• 23:07Speaker 04

  JoJo is there, in his arms.

• 23:09Speaker 03

  I was like, is she OK? Is she OK?

• 23:12Speaker 02

  Joel is frantically looking her over.

• 23:13Speaker 03

  She was covered in dust, and there were, like, wood chips.

• 23:18Speaker 02

  Sarah says she had never been so scared and so relieved. JoJo was OK.

• 23:24Speaker 03

  She was like, I was fine. My hair.

• 23:27Speaker 03

  Is my hair OK?

• 23:30Speaker 04

  Everyone rushes out of the house. And as they're getting into the car, Sarah takes one last look at the tree that has collapsed on her house.

• 23:39Speaker 03

  And the first thought that came into my head was, we all lived, and we never have to worry about that frickin' tree again.

• 23:47Speaker 02

  OK, 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.

• 24:04Speaker 04

  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 as big as the one that fell on their house, the fee could be at least $700.

• 24:28Speaker 02

  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 because 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.

• 24:52Speaker 04

  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 in March.

• 24:58Speaker 02

  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.

• 25:16Speaker 03

  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. Um, this, it was a safety reason. And so that was like, the part that was extra demoralizing.

• 25:47Speaker 02

  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.

• 26:15Speaker 04

  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.

• 26:26Speaker 02

  Now, there is one piece of good news. Their cat, Binks, 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.

• 26:52Speaker 02

  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 in 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 3:00 PM Eastern. I'll be there. The main author of our book, Alex Mayasi, 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 nonprofit journalism. See you there.

• 27:37Speaker 04

  This episode of Planet Money was produced by James Sneed and Emma Peaslee. It was edited by Jess Jiang, fact-checked by Vito Emanuel, and engineered by Robert Rodriguez and Sina LaFredo. Alex Goldmark is our executive producer.

• 27:49Speaker 02

  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 Guo.

• 28:02Speaker 04

  And I'm Amanda Oranchuk. This is NPR. Thanks for listening.

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