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New Jersey Shore Builders Association v. Township of Jackson

May 13, 2009

NEW JERSEY SHORE BUILDERS ASSOCIATION, A NON-PROFIT NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF JACKSON, A NEW JERSEY MUNICIPAL CORPORATION LOCATED IN OCEAN COUNTY, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers the validity of a municipal tree removal ordinance requiring a property owner to either replace any tree that is removed or pay into a fund dedicated to planting trees and shrubs on public property.

In 2003, the Township of Jackson (Township) enacted a tree removal ordinance under its police power. The stated purposes of the ordinance were to address the adverse effects of tree removal on private property, protect the environment, and promote the "health, safety and general well-being" of the Township's inhabitants. In part, the ordinance requires that a property owner apply to the Township's Forester for a tree-removal permit, followed by a review of a tree save plan for the property by the Shade Tree Commission, Township Engineer, and Environmental Commission. If the permit is granted, a fee is assessed. Under the ordinance's tree replacement scheme, removed trees must be replaced unless they are dead or fatally diseased. Based on the size of the removed tree, the ordinance sets forth the quantity and quality of plantings that must be placed on another part of the property. If the property owner is not able to replant, he or she pays a replacement fee that is based on the size of the tree that was removed. The fee is deposited into a Tree Escrow Fund "for the administration and promotion of tree and shrub planting projects on or within public properties or facilities."

In April 2004, New Jersey Shore Builders Association (NJSBA) filed an action in lieu of prerogative writs challenging the ordinance. During a two-day bench trial, the trial court heard testimony by the parties' experts. On December 1, 2005, the trial court declared the ordinance invalid. The court determined that the ordinance's purpose was to ameliorate the hazards of clear cutting trees-soil erosion, dust, and reduction in property value-on the specific properties from which the trees were removed. Ruling that the Township had failed to explain how tree planting on public lands would have any beneficial effect on the properties from which the trees were removed, the judge concluded that the Tree Escrow Fund and the utilization of the fund to plant trees on public property did not bear a real and substantial relationship to the ordinance's purposes. Although the Township's experts had referred also to the need to maintain the biomass within the Township, the court found the argument that the ordinance would address that concern to be tenuous and inadequately pursued in the record.

The Appellate Division affirmed, declaring, for the reasons expressed by the trial judge, that the ordinance was not a valid exercise of the Township's police power because the payment of a fee to plant new trees on public land did not ameliorate the negative effects of removing trees on private property.

The Supreme Court granted the Township's petition for certification. 193 N.J. 586 (2008).

HELD: The Township of Jackson's tree removal ordinance is a valid exercise of police power because the details of the ordinance, including the tree replacement fee, the escrow fund, and the planting of trees and shrubs on public property when replanting at the original location is not feasible, are rationally related to the broad environmental goals that inform the ordinance.

1. The central feature of plenary state legislative authority is the police power, which justifies legislation to further the public health, safety, welfare, and morals. The Township specifically declared that it was enacting the tree removal ordinance under the police power statute, N.J.S.A. 40:48-2. Although the ordinance touches on the use of land, it is not a planning or zoning initiative that implicates the Municipal Land Use Law. Instead, the ordinance is a generic environmental regulation. (Pp. 17-20).

2. Police-power legislation is subject to the constitutional limitation that it not be unreasonable, arbitrary, or capricious. Additionally, the means must have a real and substantial relation to the object sought to be obtained. Ordinances enacted pursuant to the police power are presumptively valid. Absent a sufficient showing to the contrary, it will be assumed that the legislation rested upon some rational basis within the knowledge and experience of the legislature. It is not the court's job to weigh the evidence for or against an enactment, or to evaluate the wisdom of the policy choice made. (Pp. 20-22).

3. The Court concludes that the tree-removal ordinance is valid. The trial court erroneously placed the burden on the Township to justify the ordinance, and adopted a narrow interpretation of the ordinance that focused on a single goal. In particular, the trial court erred in determining that the purpose of the ordinance was to ameliorate the hazards of cutting trees, such as erosion, dust, and diminution of property values on the specific properties from which the trees were removed, and in concluding that allowing tree replacement elsewhere through an escrow fund was unrelated to that goal. On its face, the ordinance recognizes that the removal of trees on any property affects the health, safety and well-being of the Township's inhabitants and that trees are an important ecological resource. Those findings express the broader ecological purpose that animated the ordinance. (Pp. 22-23).

4. The Court rejects the argument that the ordinance does not achieve its stated purpose because it permits large trees on private property to be replaced by smaller trees and shrubs on public property. An ordinance need not be perfect to pass muster, it must only advance the cause it was intended to achieve. Smaller trees and shrubs can have an important impact on the environment. With regard to planting on public property, the Township cannot mandate that trees be replanted on other private property, and its attempt to mitigate the effects of tree loss by promoting planting, wherever it can, is rational. Replanting at the original location is optimal because it addresses all of the goals of the ordinance, including dust and soil erosion. However, where that is not feasible, the Township mitigates the overall loss by planting off-site through the use of the escrow funds. That methodology essentially tracks the way the Department of Environmental Protection mitigates freshwater wetlands losses, by requiring a property owner who is permitted to destroy wetlands on his property to protect them elsewhere. The Township's ordinance is reasonable, and the possibility of a more reasonable ordinance is not relevant. (Pp. 23-28).

5. The Court rejects the argument that the tree replacement fee is an invalid tax. When the property owner is not able to replant, a critical part of the regulatory process is the replacement fee, which enables the municipality to do the replanting itself. So long as the replacement fees do not exceed the municipality's costs for administration and replacement, they are legitimate elements of the regulatory scheme. Replanting on the original site is the scheme of choice. To encourage such replanting, the ordinance makes it the least expensive option. If that is not feasible, the replacement fee is triggered. The fee, according to the testimony at trial, is calculated based on the cost of replacing a tree of similar size or a number of small trees. Because there is no evidence to suggest that the fee exceeds the Township's cost for administration of the tree replacement program and the replacement itself, there is no basis to conclude that the fee is a revenue raiser or that it unreasonably exceeds the cost of regulation. (Pp. 28-30).

6. The Township's tree removal ordinance is a valid exercise of police power. The judgment of the Appellate Division to the contrary is reversed. The ordinance remains in limbo, however, because the Appellate Division affirmed a determination by the trial court declaring the ordinance to be void for vagueness, including for failing to more specifically define when removal is for a "useful or beneficial purpose" and failing to provide standards for the use of the escrow fund. That ruling was not challenged before this Court. The trial judge's declaration regarding vagueness will remain in effect, therefore, and the Township will be required to amend the ordinance. (Pp. 30).

The judgment of the Appellate Division is REVERSED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LONG's opinion.

The opinion of the court was delivered by: Justice Long

Argued September 9, 2008

At issue in this appeal is the validity of a tree removal ordinance, enacted by a municipality under the police power.

The ordinance requires a property owner to replace any tree that is removed (with certain enumerated exceptions) or, if that is not feasible, to make a payment into a fund dedicated to the planting of trees and shrubs on public property. The trial judge held that the intent of the ordinance was to ameliorate the hazards of removing trees by regulating "the indiscriminate and excessive cutting of trees on the specific properties," and that the payment for tree placement on public property "does not bear a real and substantial relationship" to that goal. The Appellate Division affirmed based on the reasoning of the trial judge.

The municipality filed a petition for certification that we granted. We now reverse. The proper test for the validity of an ordinance enacted pursuant to the police power is the "rational basis" test, which the tree removal ordinance plainly satisfies. The lower courts erred in failing to accord deference to the presumption of validity of the ordinance and by too narrowly characterizing the goals underlying it. To be sure, the ordinance was intended to ameliorate the evils of tree cutting on particular pieces of property. But that was not its only purpose. Indeed, the ordinance was limned, as well, to serve general environmental goals, including the maintenance of the biomass of the municipality with its concomitant ecological benefits of habitat, tree canopy, and oxygen production. The means employed in the tree removal ordinance were rationally related to those objectives.

I.

In 2003, the Township of Jackson ("Township") adopted the tree removal ordinance ("ordinance") that is at issue here, under the general police power, N.J.S.A. 40:48-2.*fn1 The stated purposes of the ordinance are as follows:

(1) The indiscriminate, uncontrolled and excess destruction, removal and cutting of trees upon lots and tracts of land within the Township has resulted in creating increased soil erosion and dust, has deteriorated property values and further rendered land unfit and unsuitable for its most appropriate use, with the result that there has been deterioration of conditions affecting the health, safety and general well-being of the inhabitants of the Township of Jackson. It is the intent, therefore, of this chapter to regulate and control the indiscriminate and excessive cutting of trees in the Township.

(2) Trees are declared to be important cultural, ecological, scenic and economic resources. Proper management of this resource will ensure its maintenance and result in greater economic returns. A property forestry management program is intended to meet the objectives of preserving, protecting, enhancing and maintaining trees and providing opportunities for continuing uses of forest resources which are compatible with the maintenance of the environment. This will be accomplished by ensuring proper management of forest and trees through the application of sound management practices. To that end, it shall be unlawful to cut down, damage, poison or in any other manner destroy or cause to be destroyed any trees covered by this chapter, except in accordance with the provisions of this chapter.

[Township of Jackson, N.J., Admin. Code ch. 100, § A (2003).]

The ordinance provides that, "[u]nless specifically exempted*fn2 herein, it shall be unlawful for any person to remove or cause to be removed any tree with a trunk diameter of three (3) inches or more DBH (Diameter Breast Height)*fn3 without first having obtained a tree removal permit to do so." Id. § B(1). To obtain such a permit, a landowner must "make application to the Township Forester by filing a written application and paying [a] fee" of ten dollars for each new or existing lot. Id. §§ C(1), G(1). After an application "has been submitted, no permit shall be issued until a tree save plan for the lot or parcel has been reviewed and approved by the Township Forester with recommendation of the Shade Tree Commission, Township Engineer, and Environmental Commission, where appropriate." Id. § C(1).

The ordinance permits residential developers to clear a certain percentage of the property without tree replacement:

For all existing and new residential development with a proposed lot area no more than 40,000 square feet, up to fifty (50%) percent of the lot area may be cleared of trees without replacement trees required. For residential development with a proposed lot area of 40,000 square feet or greater, up to 20,000 square feet in area of proposed trees may be removed without replacement trees required. The lot area for which tree replacement shall not be required as set forth herein shall be the "Exempt Area." [Id. § C(2)(a).]

Nonresidential developers must "replace all trees removed in accordance with [Section I] of [the] ...


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