On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1148-04PW.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Lyons.
The Township of Jackson (Township) appeals from the December 12, 2005 final judgment of the Law Division declaring that Jackson Township Ordinance 41-03 and Chapter 100 of the Township Code are "invalid, void and unenforceable." We affirm substantially for the reasons expressed by Judge Eugene D. Serpentelli in his December 1, 2005 written opinion. These are the salient facts. In 2001, the Township adopted an ordinance regulating the removal of trees (2001 ordinance). The New Jersey Shore Builders Association (Association), filed an action in lieu of prerogative writs in order to challenge the 2001 ordinance. Judge James D. Clyne held the 2001 ordinance invalid and declared that it was ultra vires and unenforceable. On May 12, 2003, the Township adopted the ordinance under appeal (2003 ordinance), which attempted to address the deficiencies in the 2001 ordinance. The 2003 ordinance created Chapter 100 of the Township Code, entitled "Tree Removal." It required that any trees removed from lands within the Township be replanted with new trees on the same site on a one-to-one basis. There are two exceptions to this general requirement:
(1) trees located in designated "exempt areas" do not have to be replanted; and (2) in lieu of replanting, a landowner may pay a designated fee to a Tree Escrow Fund (TEF). The money in the TEF will then be used by the Township to plant new trees on other properties owned by the Township. The 2003 ordinance states:
A Tree Escrow Fund shall be established by the Township for the administration and promotion of tree and shrub planting projects on or within public properties or facilities.
Appropriations from the Tree Escrow Fund shall be authorized by the governing body and shall be used for the foregoing public purposes through the recommendation of the Township Forester, Township Engineer or Township Planner.
[Ord. 41-03, Section I(3)(a)(3).]
The 2003 ordinance further requires a landowner to obtain a permit prior to the removal of any tree with a trunk diameter breast height (DBH) of three inches or more. To obtain a permit, the landowner must submit an application and the requisite fee to the Township Forester who then reviews the application, inspects the site and files a completed report. The applicant must also provide a proposed tree replacement plan. The Township Forester, after consulting with the Township Engineer or the Shade Tree Commission, "may deny [a] permit if the following conditions exist: any negative effect upon ground and surface water quality, specimen trees, soil erosion, dust, reusability of land, and impact on adjacent properties." Ordinance 41-03, Section F(2).
The landowner applicant must pay tree replacement fees for each tree that is removed, but not replanted, on the same site on a one-to-one basis, or implement a reforestation scheme on other portions of the same property for each square foot of tree area removed. The replacement fee is set by a sliding scale (from $200 per tree, for trees six inches DBH to twelve inches DBH, to $800 per tree, for trees twenty-four inches DBH or larger).
In order to challenge the 2003 ordinance, the Association filed another complaint in lieu of prerogative writs. During a two-day bench trial, the Association presented testimony from its expert witness, Peter G. Steck, a licensed city and regional planning consultant. He opined that the 2003 ordinance does not serve its intended purpose. He also opined that, although tree removal could have a negative effect when the trees are located: on steep slopes; in a stream corridor; in buffer areas; or on wooded ridgelines; the substantive provisions of the 2003 ordinance, namely the TEF, does nothing to remedy these negative effects of tree removal.
The Township presented two witnesses, Jeffrey Nagle, a certified planner and landscape architect who was the primary drafter of the 2003 ordinance, and Robert Eckhoff, a certified arborist and tree expert who is the Township Forester.*fn1 Nagle testified that when drafting the 2003 ordinance, similar ordinances adopted in other municipalities were used as a model. Nagle testified as to the purpose and intent of the 2003 ordinance, namely, to reduce indiscriminate tree removal. However, Nagle admitted that the 2003 ordinance allows the TEF to be used to plant shrubs and plants other than trees. Eckhoff testified as to the general application process for an owner of a single family residential home or for a builder of new homes to obtain a tree removal permit. Eckhoff also testified as to the expenditures from the TEF. He testified that the replanted shrubs, plants, or trees must be on public property because they are not permitted to replant trees on private property.
On December 1, 2005, Judge Eugene D. Serpentelli issued a letter opinion finding the 2003 ordinance invalid for the following two reasons: (1) the means employed by the ordinance to control the tree removal were not rationally related to the goals of the ordinance; and (2) ...