On November 18, 2011, Brian Novie was charged with violating the Tree Preservation and Landscape Maintenance Law of the Village of Montebello. The then defendant Novie moved to dismiss on the ground that the Tree Law is unconstitutional.

When the defendant and his wife had purchased their house, it included almost an acre of land with trees on the front of the property facing the town road and a backyard area that had been “left unattended and as a result became overgrown with mainly Ash trees.” In 2009, defendant cut down some dead and dying trees, after which the Village of Montebello charged him with violating the Tree Law, which required, among other things, to obtain the Village’s permission to remove any tree. 

In February 2010, defendant entered into a civil compromise with the Village by which, in lieu of prosecution, he agreed to pay $250 and to "follow proper procedures with regard to any tree removal." In July 2010, defendant applied for a permit to remove 15 dead ash and elm trees, two oak trees (to which defendant was allegedly allergic), and one birch tree. In August 2010, defendant’s application was approved allowing 11 trees to be removed. However, 14 trees were cut down and the defendant was again charged with violating the Tree Law.

Defendant made a Fifth Amendment takings claim, arguing that the Tree Law takes his private property for public use without compensation since it "takes" all trees at least four inches in diameter and gives the Village the right to demand a tree cutting application. The law provides a process by which a property owner can seek a retroactive application for a permit to remove trees and an exception to any other requirement of the law. The Court found the takings claim was unripe, since he had initiated but never pursued that exception process.

Inasmuch as the Village code provides for an exception process, which defendant, admittedly, chose not to pursue voluntarily giving up his right to be heard, his procedural due process challenge was also found not ripe.

The Court also found no merit to defendant’s claims that the Village’s enforcement of the Tree Law violated his First Amendment free expression rights, in this case “to express himself through the landscaping”. He did not show that his desire to landscape his backyard to create a lawn is protected speech or conduct in that it amounts to artwork that is “a quintessential form of expression.”

To the extent that defendant argued that the Village’s “preserve woodlands” mandate raises 14th Amendment equal protection concerns because pre-Tree Law property owners are allowed to have lawns, he was held incorrect. The Tree Law givers persons under like circumstances equal protection in enjoyment of their lives, liberty, property and in their pursuit of happiness, … apparently, a long as happiness does not involve a well manicured lawn.

The September 17, 2013 decision is People of the State of New York v Brian Novie, 2013 NY Slip Op 23315.