Constitutional Issues

Federal Court Mulls While Village Court Rules Municipal "Tree Law" Unconstitutional, Despite Presumption of Validity

As readers of this blog know, we’ll sometimes reach to “other places”, outside North Carolina, for some interesting land use law developments. Readers will also know that I, in particular, like to reach back to Rockland County, New York, the place of my birth.

This latest news is fun and educational.

The Village of Montebello is located in the Town of Ramapo, about 45 minutes north of The Bronx, New York. I would describe Montebello as “rustic suburban”; “rural” is aspirational and, frankly, unfair. In any event, rustic suburban Montebello enacted in 2005 a “Tree Law”, the only such law in Rockland County. Pursuant to that local “Tree Law”, property owners are restricted as to the removal of trees from their property. The “Tree Law” can be found here, specifically at Section 176.

Mr. and Mrs. Novie moved into the Village in 2004. In 2009, Mr. and Mrs. Novie applied for and received permission from the Village authorities, pursuant to the “Tree Law”, to remove 3 dead trees and 3 living trees from their property. The Village alleged that the Novies removed 12 trees, and cited the Novies for violating the “Tree Law”. In February 2010, the Novies and the Village settled on a $250 fine and assurances of no further violation, such as an assurance may be.

In 2010, Mr. and Mrs. Novie applied to remove 15 trees from their property. The Village did not “expressly ‘deny'” the Novies’ application, according to the Novies, and they proceeded to cut certain of those 15 trees. The Village ordered the Novies to go before the Planning Board, at which point the Village fined the Novies in excess of $1500 for violating the “Tree Law”.

In December 2010, the Novies filed a federal lawsuit against the Village and “its boards and agents” contending the “Tree Law” is unconstitutional. Specifically, the Novies allege:

“[T]aken together, the Village’s ordinances constitute an interference with their constitutional right of contract for the purchase of a suburban residence without unreasonable regulation, and constitutes both a regulatory and possessory taking of [Novies’] real property without just compensation through the Village’s de facto creation of a conservation easement upon the entirety of [Novies’] back yard. [Novies] also allege unconstitutional selective enforcement.”

The federal case is still pending in the S.D.N.Y. In the meantime, however, a Village Justice–hearing an appeal of the fines levied against the Novies–ruled from the bench this past week that the “Tree Law” is unconstitutional. The Village court is quoted as stating, “[Notwithstanding the usual presumption of constitutionality afforded to municipalities, in this case the Village’s law was clearly unconstitutional, and ‘not a close call’.”

You’ve seen us blog before about the presumptions benefiting a municipal government and their legislative acts; but you also seen us blog about litigants overcoming those presumptions in a variety of cases.

Whatever the case, in the Village of Montebello as concerns the trees, it’s Property Owners-1, Municipal Government/Trees-0.

We’ll see how the federal court “tree-ts” these issues.

Mike Thelen is a lawyer in Womble, Carlyle’s Real Estate Litigation practice group. He regularly represents a wide variety of clients, from local governments to businesses, in land use and land development issues in both state and federal venues throughout North Carolina.

Categories: Constitutional Issues

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