On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-151-02.
Before Judges Skillman, Collester and Parrillo.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
At issue is the constitutionality of a Princeton Township (Township) ordinance prohibiting the purposeful or knowing feeding of wild deer on public and private lands throughout the Township. Plaintiffs are twenty-one Township residents who challenge the ordinance on the grounds that it arbitrarily and unreasonably deprives them of their property right to feed wild deer on their land; is not sufficiently clear; and extends further than is necessary to fulfill the municipality's interest. We are satisfied that there is no constitutional infirmity inherent in the ordinance.
The history of the State's efforts to comprehensively address deer management was detailed in our earlier opinion, Mercer County Deer Alliance v. New Jersey Dep't of Env't Prot.. 349 N.J. Super. 440 (App. Div. 2002), and culminated in the enactment of N.J.S.A. 23:4-42.3 to -42.8 (Act), effective June 30, 2000. The Act allows a locality to apply for designation of a special deer management area, N.J.S.A. 23.4-42.3(a), and provides for the issuance of a permit for implementation of an approved community-based deer management plan. N.J.S.A. 23.4-42.5 to -42.6.
Pursuant to the Act, the Township applied to the Division of Fish, Game and Wildlife in the Department of Environmental Protection (Division) for designation as a special deer management area and for a permit to implement its five-year comprehensive deer management plan. Approvals were obtained, and a permit was issued on November 20, 2001, authorizing the Township, during the winter 2001-2002 season, to eliminate deer by, among other means, a method known as"netting and bolting."
As part of its comprehensive plan, on November 26, 2001, the Township adopted Ordinance 2001-25, at issue here, which provides in pertinent part:
No person shall purposely or knowingly, as said terms are defined in Title 2C of the New Jersey Revised Statutes, feed wild white-tailed deer... in said township, on lands either publicly or privately owned. It shall be presumed that the person is purposely or knowingly feeding deer unless the feed is placed on a platform that is raised at least four feet off the ground or is placed in a feeder whose opening is sufficiently restricted so as to prevent deer from accessing the feed.
In recognition that overpopulation was not only threatening the viability of the deer herds, but was also causing ecological and environmental degradation, landscape damage, the spread of Lyme disease, and an increase in vehicular accidents, the preamble to the ordinance states:
WHEREAS, the Township of Princeton remains concerned with the significant impact of the growth of the white-tailed deer population inhabiting the Princeton community, including deer/vehicle collisions, Lyme disease, the reduction and/or elimination of native plant materials and habitat for other wild animals and the erosion of stream banks, and damage to ornamental plantings within said community; and
WHEREAS, the feeding of deer has been shown to increase the concentration of deer in the area of feeding, thereby increasing the likelihood of deer/vehicle collisions in the vicinity, increasing the local number of nymphal deer ticks, and increasing damage to vegetation and landscaping nearby, and is therefore counterproductive to the Township's goals of reducing the local deer population within the municipality and its impact on the community; and
WHEREAS, the feeding of deer can be detrimental to the overall health and well-being of the deer.
As is evident from the prefatory language, the Township considered a feeding ban necessary to properly manage its wild deer population ...