(plaintiff sought to remove tree from city lot that was within city right-of-way because it shaded his garden, and applied to defendant for permit to remove tree; permit request denied because tree at issue healthy and beneficial and not dangerous; on appeal Dept. of Parks and Recreation also denied request; trial court dismissed case for failure to state claim upon which relief could be granted; under applicable city ordinance, defendant has discretion to either grant or not grant permit; discretion granted to defendant to deny permit not unconstitutional taking; one judge (Terri Stoneburner) dissented arguing plaintiff entitled to permit).