That title is not hyperbole.
The proposed changes to the Clarkston tree ordinance are another installment in the “Clarkston Government Wants to Own Your Life And Property” book series. You should add these pages to the chapter titled “Who the Eff Do They Think They Are And Why Are They Wasting My Tax Dollars On This?”
Fresh off increasing our taxes by .691 mills to pay for salary and benefit increases primarily for three city hall employees (city manager Jonathan Smith, clerk Angela Guillen, and treasurer Greg Coté, with Smith getting the largest increase), the city now wants to further convert what once was laid back and charming Clarkton into more of a government-controlled hellscape by controlling what we do with our own trees in our own backyard because there’s apparently nothing more pressing or worthwhile for Clarkston government officials to do.
Think you’re safe if you (fortunately) don’t live in the historic district? Think again. This applies to you, too.
This issue began several months ago when some nosey neighbors on Middle Lake Road called city manager Jonathan Smith to complain that their neighbor had topped off his own trees on his own property in his own yard and OMG OMG OMG how could Smith have let it happen?!?!?!? I cannot fathom why anyone would think that topping off trees in a backyard is any of the city’s business or that it’s worth a call to city hall to waste taxpayer dollars discussing personal opinions about what a neighbor had done with his trees, but these people did just that. (Throughout history, we’ve seen countless examples of people reporting their neighbors to the local authorities regardless of the cost, haven’t we?)
Smith, who also personally didn’t like what the resident had done, sadly admitted to the busy bodies there was nothing the city could do about what a private property owner does with his own trees. If Smith respected private property rights, that would have been the end of the matter. But our power-hungry city manager couldn’t leave the issue alone. He was unhappy that the property owner didn’t bow and scrape and get Smith’s permission before topping off his own trees, so Smith brought the issue to city council to see if they also wanted to interfere in private property rights and prevent people from doing whatever they want with their own trees on their own property in their own backyards.
And of course they did! Councilmember Gary Casey thought it would be a great idea to remove a section of the current ordinance that “allowed” people to cut down their own trees entirely – and Smith agreed. Councilmember Quisenberry also agreed and said Clarkston has decided as a city that there are “gonna be controls put in place for you to do certain things on your property.” Former city attorney Tom Ryan suggested the city do an ordinance survey to see what other cities are doing because he claimed there are ordinances out there declaring that trees on private property are a public resource (which gives the local government control over them). Councilmembers Erica Jones and Laura Rodgers asked questions about the current ordinance but didn’t say anything in favor or against property owner’s rights, though Jones thought there should be a “balance.” The only person who spoke out against the insanity was mayor Sue Wylie. (Councilmembers Al Avery and Amanda Forte were absent.) There was no formal vote, but this discussion was enough for Smith to ask the planning commission to rewrite the ordinance to give Clarkston government more control over what residents do with their trees. (I wrote about it here.)
Five months later, your planning commission delivered proposed changes to the tree ordinance that far exceed the initial request and that Smith is likely drooling over. Smith is presenting these changes to the city council for discussion at Monday’s city council meeting.
You can read this steaming pile of excrement, er, the proposed changes to the tree ordinance, here. The text in yellow highlights represents the proposed changes and takes up most of the three pages. (Because when it comes to government control, you should go big or go home, right?) The unhighlighted text is the current ordinance that has worked just fine since 1915 – until Smith decided that HE should be able to tell YOU what to do with your privately-owned trees on your privately-owned property.
Before we discuss this further, you may be wondering who drafted this piece of garbage. Let me introduce you to your planning commission:
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- Resident Derek Werner, chairperson
- Resident Kevin Knapp, secretary
- Resident Andrew North, member
- Resident Robert Sowles, member
- Councilmember (and resident) Amanda Forte, city council liaison
Let’s take a look at the ordinance changes your planning commission is proposing to Chapter 96 of our city ordinances that are designed to harass you and interfere with your private property rights, and we’ll take one section at a time. The planning commission’s proposed changes are in yellow; the unhighlighted language is what we have now. Remember, this is a criminal ordinance, and any law that can deprive you of life, liberty, or property must meet the highest standards for clarity.
Section 96.01 – “Planting of Tree”
Any person owning or occupying any lot, lands or premises in the city desiring to plant or transplant shade or ornamental trees in the streets contiguous to land may apply to the DPW whose duty it shall be to designate where these trees shall be set or planted, and when the DPW has so designated, then, and not until then, shall the party be permitted to set out or plant shade or ornamental trees. If any person is dissatisfied with the finding of DPW, he or she may bring the finding of the DPW before the Council whose finding shall be final. The action of the DPW shall be binding on all parties until the Council shall act upon it.
The DPW shall have control over all trees located within the street rights-of-way and parks in the city and the planting, care and removal thereof. The owner of land abutting on any street may, upon obtaining prior written permission of the DPW, prune, spray, plant or remove trees in that part of the street abutting the owner’s land not used for public travel, but no person shall otherwise prune, spray, plant or remove any tree in any street or park. Where an owner of abutting property requests the removal of a tree, the DPW is authorized to require as a condition to granting of approval for such removal, that such property owner make the removal in accordance with regulations established by the department, assume all or any part of the costs of removing such tree, and also to require that the tree removed, be replaced at some other nearby location by planting another tree, not necessarily of the same type.
(“DPW” is an abbreviation for Department of Public Works. We have two employees working in our DPW department – Jimi Turner (supervisor), and Carson Danis (laborer). Both are full-time employees. To the best of my knowledge, neither of them are qualified arborists or have any particular training in that area.)
I don’t care about this section at all. This language deals with trees planted in the grassy area between the sidewalk and the street (colloquially referred to as the berm). Even though the city owns this area, they expect you to mow it.
This section of the ordinance affirms that trees growing in the berm belong to the city. You have zero obligation to care for any trees the city plants there. Since violating the ordinance is a criminal offense, you should let city trees die rather than water or fertilize them unless you want to risk up to a $500 fine and up to 90 days imprisonment. Once a city tree dies, you can ask the city to dispose of it, and they are obligated to do so. The recent .691 mill Smith/Guillen/Coté salary/tax increase brings us up to the maximum tax assessment our charter allows, and this is one small way to make the city actually do something to earn it.
Section 96.02 – “Cutting or Destroying Trees”
(A) No person or persons shall cut, cut down, destroy or mutilate in any manner, except as may be provided for in this chapter, any shade or ornamental trees so long as they are alive and growing within the limits of the city.
(B) All dead trees and trees afflicted with any fatal or communicable disease shall be removed by the DPW with the approval of the city manager. The city manager is hereby authorized to direct the DPW to remove any tree of a prohibited species.
(C) No person shall use any tree as an anchor, and no material shall be fastened to or hung on any tree.
(D) This section is not to be construed so as to prevent the owner of private premises from cutting any tree or trees growing wholly within or upon private premises.
Section (A) prohibits anyone from cutting, cutting down, destroying, or mutilating any living shade or ornamental tree within the city, no matter where it’s located.
Section (B) allows Smith to “authorize and direct” DPW employees to remove any tree of a “prohibited species.” The ordinance doesn’t tell us what a prohibited species is, so I guess Smith claims an unfettered right to order Turner and Danis to enter onto privately-owned property and remove any privately-owned tree Simith arbitrarily decides is “prohibited” using his previously undisclosed and likely nonexistent arborist skills. (And that’s totally not an unconstitutional taking. 😂) How Smith would know where “prohibited trees” are growing without trespassing on private property or skulking around the neighborhoods with a spyglass isn’t clear. (I’m being flippant about the spyglass, but you can be cited for ordinance violations that can be observed from the public street or sidewalk or from your nosy neighbor’s backyard if the neighbor gives consent to let the city spy on you from their property – and there are lots of jack wagons like that in Clarkston.)
Section (C) means the city will be removing the bat houses in Depot Park that were part of a Boy Scout project because they’re attached to trees. Such a shame. ☹️ This subsection would also prohibit the unobtrusive tree swing we’ve had in our side yard for years, but the city can eff right off, not pass Go, and not collect $200 – we are not taking down our privately-owned swing attached to our privately-owned tree on our privately-owned property. (Come at us, bruh – I cannot effing wait, though I thought you had better things to spend legal fees on than something as petty as this.)
Now you might read (D) as protecting your rights to deal with your own trees as you see fit, but not so fast. (D) only “allows” you to cut your own trees, though it’s not clear if it’s still your tree if any part of it hangs over public property since that wouldn’t be “wholly within” your private property. And whatever deference this subpart provides is only limited to “this section” of the ordinance (section 96.06 discussed later takes most of your rights away).
Section 96.03 – “Electric Wires”
No electric wires shall be strung so as to transmit electric current to or interfere with the growth of any shade or ornamental tree alive and growing within the limits of the city.
No changes to this section. It’s been around since 1915. It’s probably a good idea not to run electric wires through trees, though this is broad enough so that it may limit some of the pretty decorative lighting that people have in their backyards if Smith arbitrarily decides it “interferes” with tree growth. I doubt this section was ever enforced, but since city hall is now occupied by Clarkston’s version of the Stasi who want to fine and imprison you for violations of a stupid tree ordinance, you may want to double check your privately-owned backyard lighting to confirm that it doesn’t “interfere” with one of your privately-owned trees on your privately-owned property – just in case.
96.04 – Trimming of Trees
(A) All trees that stand in and extend over the streets of the city shall at all times be kept so trimmed that no branches thereof shall be less than eight feet above the sidewalk in or over which they stand.
Every owner of any tree on private property overhanging any street or right-of-way within the city shall trim the branches so that such branches shall not obstruct the light from any street lamp or obstruct the view of any street intersection and so that there shall be a clear space of eight feet above the surface of the street or right-of–way. Said owners shall remove all dead, diseased or dangerous trees, or broken or decayed limbs which constitute a menace to the safety of the public. The city shall have the right to trim any tree or shrub on private property when it interferes with the proper spread of light along the street from a street lamp or interferes with visibility of any traffic control device or sign, such trimming to be confined to the area immediately above the right-of way.
(B) It shall be [the version in the city council packet omits the words “the duty”] of the owners of these trees to keep them trimmed as required by this chapter.
I don’t have any issues with (A) or (B). If you own a living, dead, or diseased tree and it interferes with a city streetlight, traffic signal, sidewalk, or intersection, you should deal with it at your own expense whether it’s a “menace” to public safety or not (whatever that means 😂). Funny how the city recognizes that it’s your tree when it’s a problem for the city, but as you’ll see in a later section, the city thinks your trees are its trees even when the trees are not “menacing” the public. Weird, huh?
I guess the zealots who proposed the changes to the ordinance overlooked the missing words in (B). (Proofreading is such an underrated skill, isn’t it?)
Section 96.05 – Dangerous, Diseased, or Infested Trees
When the director shall discover that any tree growing on private property within the city is dead, dying, damaged, or has broken or decayed tree limbs and constitutes a hazard to the safety of persons or property, or is afflicted with any dangerous and infectious insect infestation or tree disease, the director shall forthwith serve a written notice upon the owner or the owner’s agent, or the occupant of the property, describing the tree, its location and the nature of the hazard, infestation or tree disease and ordering the owner, agent and occupant to take such measures as may be reasonably necessary to eliminate such hazard or cure such infestation or disease and to prevent the spreading thereof, specifying the measures required to be taken. Such order may require the pruning, spraying or destruction of trees as may be reasonably necessary. Every such notice shall be complied with within ten days after service thereof, upon the owner, agent or occupant of the property on which the hazardous or afflicted tree is located, or within such additional time as may be stipulated in such notice.
The city manager and DPW shall have the authority to enter upon private premises for the purpose of examining any trees, shrubs, plants or vines for the presence of destructive insects or plant diseases. No damages shall be awarded for the destruction of any tree, shrub or plant or fruit or injury to the same, if done by the city manager or under the city manager’s direction, in accordance with this article.
Not sure who the “director” is or how that person might “discover” diseased trees, but that person is apparently going to “forthwith” do stuff to you.
My favorite part of this section is where Smith and the city supposedly can dispense with our constitutional rights by putting magic words into an ordinance that says they can.
Wrong!
Smith and the two DPW employees may not lawfully walk into your backyard to “examine” and destroy your privately-owned trees, shrubs, plants, and vines. Just like vampires, city and other government officials cannot enter your property without consent unless there’s an actual emergency, like a fire (though it’s really unfair to compare vampires to city officials – unfair to the vampires, that is). This consent comes from persons who have ownership or occupancy rights to the property and the consent must be voluntary and uncoerced. Authority to enter private property can also come through a judicially authorized administrative warrant that limits the Clarkston officials who can enter your property, limits what they can do once they’re there, and must be based on factual information provided by city officials (that isn’t obtained by unauthorized entry on your property). Without permission, a warrant, or a recognized exception to the warrant requirement (such as a legitimate emergency like a fire), not only would this be trespass, but it’s also at least a violation of your constitutional rights. Depending on the facts, I’m sure there are many causes of action that can be brought not only against the city but also against Smith and the DPW employees personally.
When I worked for the City of Detroit, I couldn’t stop a person with confirmed, deadly, drug-resistant tuberculosis from leaving the hospital and infecting other people without getting a judge’s permission through a court order. That order also ensured a hearing took place within a short period of time when the patient would be represented by their own lawyer to refute the claims my Health Department client and the hospital made against them about their illness, treatment, and the necessity of confinement. The Oakland County Sheriff can’t even enter your private property without your consent or a warrant unless there is a legally recognized exception to the warrant requirement (like chasing a fleeing felon through your backyard).
But your planning commission thinks Smith should be able to enter your private property – and/or order Turner and Danis to enter your private property – to look at bugs and diseased vegetation without your consent or a warrant just because an ordinance says they can? Even without legal training, it’s disturbing that your planning commission thinks things should work that way.
Smith needs an effing administrative warrant if he wants to enter private property to explore bugs and tree diseases without the consent of the property owner. Otherwise, he might risk looking at the end of the barrel of another constitutional right on the one hand or removal by the Sheriff on the other. And the city better have money set aside for the civil lawsuits because damages and attorneys’ fees for deliberately violating a resident’s constitutional rights is probably not covered by the city’s liability insurance – or Smith’s personal homeowner’s policy.
Section 96.06 – Protected Trees
Any tree having a diameter breast height (DBH*) of six inches or greater should be considered a protected tree.
The unregulated and unnecessary removal of protected trees is a threat to the public health, safety, and general welfare of the citizens of City of the Village of Clarkston through the elimination of important physical, aesthetic, recreational and economic assets for both present and future generations. Specifically, it is found that:
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- Protected trees provide for public safety through the prevention of erosion, siltation, and flooding;
- Protected trees aid in the protection of public health through the absorption of air pollutants and contamination, including the reduction of excessive noise and mental and physical damage related to noise pollution;
- Protected trees provide a significant aspect of the character of the city; and
- Protected tree growth serves as an essential component of the general welfare by maintaining natural beauty, recreation and irreplaceable natural heritage.
If protected trees are removed, and not authorized by permit the city manager may require replacement of such removed trees with comparable protected trees to the extent required by the city council. Replacement shall mean that a sufficient number of new trees shall be planted so that the aggregate caliper of the replacement trees shall equal or exceed the aggregate DBH of the protected trees removed without a permit.
*Diameter Breast Height (DBH). A tree’s diameter in inches measured by diameter tape at four and one-half feet above the ground. On multi-stem trees, the largest diameter stem shall be measured.
Got that? The city has declared that your trees, on your property, are a “protected asset” of the city if they are 6” or more in diameter at 4.5 feet above the ground and must be regulated using the city’s police powers – so whatever rights you think you may have using section 96.02(D) of the tree ordinance are limited to trees that are less than 6” in diameter. Your privately-owned trees in your own backyard that are 6” in diameter or more have been declared to be important physical, aesthetic, recreational and economic assets for people living now and even those to be born in the future – despite the fact that you paid for the trees and are responsible for their upkeep. Your trees must remain standing forever unless Smith gives you a permit to remove them. And, in addition to criminal penalties, if you remove your own trees without Smith’s express consent, Smith can force you to plant replacement trees – whether you want them or not.
Read the bullet points again.
Without evidence, the city simply declares that your individual, privately-owned trees in your own backyard:
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- prevent erosion, siltation, and flooding (because we all live near streams, apparently)
- must remain standing forever to protect public health by absorbing air pollution and excessive noise (whether you like them or not)
- create some sort of duty on your part to protect people outside of your family from mental and physical damage due to noise pollution
- are a “significant” aspect of the city’s character
- are an “essential component” of the general welfare of the city
- provide natural beauty
- provide recreation (recreation for who? Does the city think other people should be allowed on your property in addition to Smith and the DPW employees?)
- and are part of an irreplaceable national heritage (so trees on your private property must be maintained so you don’t upset the other 347,406,363 people you share a country with)
Have you ever heard such bullsh*t in your life? Bet you didn’t know that elm tree you planted and maintain at your own expense had such an impact on the nation, huh?
It doesn’t. These are just declarations that residents Derek Werner, Kevin Knapp, Andrew North, and Robert Sowels and resident/council liaison/council member Amanda Forte came up with as an excuse to take away your private property rights without compensation that they probably put together after an internet search and thought “yeah, those are good enough justifications to take away private property rights – let’s go for it!”
And here’s the best part:
Section 96.07 – Penalty
Any person or persons violating the provisions of this chapter on conviction thereof, shall be punished by a fine not exceeding $500 and the costs of prosecution or by imprisonment in the county jail for a period of not exceeding 90 days, or both a fine and imprisonment in the discretion of the court or magistrate before whom the conviction is had.
Even though the penalty section remains unchanged, when it’s read in conjunction with the new ordinance sections, it becomes quite ominous. Unless you let Smith personally police your privately owned trees, the city can prosecute you and force you to incur legal expenses, ask a judge to fine you up to $500, and/or throw you in jail for up to 90 days, destroying your job and personal life.
Serious question – who do these effing people think they are?
Also a serious question – exactly how do these unconstitutional, overbearing, overarching ordinance changes address the concerns of the two busy bodies on Middle Lake Road who complained to Smith that their neighbor cut the tops of his trees off?
They don’t. It’s just another power grab by city officials.
I’m going to go out on a limb here (no pun intended) and suggest the new city attorneys didn’t review these changes before they were attached to a city council meeting agenda. In particular, Kristen Kolb (one of the city’s new attorneys) would likely have had a lot to say about the ordinance, since she has quite a bit of experience fighting expensive battles in state and federal court over Canton Township’s unconstitutional tree ordinance. I’ve attached articles written about the battle here , here, here, and here. It’s significant that a fight against a local ordinance in Canton Township was funded by a public policy group in Texas that takes an interest in private property rights and provided free legal services to the property owners. Canton Township’s planning commission is now arguing over how many trees can be removed each year without a permit based on property size so apparently, they haven’t spent enough taxpayer money fighting over the tree issue.
I guess the question for the Clarkston city council is how many $150 hours do they want to spend to appease Smith and two nosy neighbors on Middle Lake Road?
And before you ever believe anyone from the city who tries to tell you the city would never apply this abomination of a tree ordinance in such a way to prohibit your kid’s tree swing or that they would never really try to throw you in jail if you cut down your own tree in your own backyard, let me remind you why you absolutely cannot trust your city government. Our city council made a lifetime promise to us that the equivalent of the .691 library millage would be applied to reduce our property taxes every year – forever. Rather than memorializing the promise in the charter, residents stupidly believed the city council. The city council kept the .691 mill annual rollback promise until Smith convinced them that Smith, Guillen, and Coté needed giant salary increases – and then the council members acted as though the .691 library millage rollback was some sort of temporary gift they were entitled to take back because it had been long enough and they simply wanted the money for something else. So, since we’ve learned the hard way that city council promises aren’t worth the powder to blow them to Hades, before any tree ordinance is adopted by the city, it needs to be written in a way so that it absolutely cannot be abused by Smith or any other city manager in the future.
I suggest that Clarkston residents pay attention to what happens with these proposed changes to the tree ordinance. If it appears that the city is going to take the legal risk and go forward, then you should take a long look at the trees in your backyard and make some decisions before the ordinance goes into effect.