Justices OK tree-clearing fee in Jackson

By Keith Ruscitti
Trenton, NJ (May 13, 2009)- The state Supreme Court has upheld the constitutionality of Jackson’s tree-removal ordinance, which requires property owners to replace any healthy tree taken down or pay into a fund dedicated to planting trees and shrubs on public property.

The ruling Wednesday was hailed by environmentalists and some Jackson officials hoping, in part, to limit suburban sprawl in the vast municipality. “This is a home run hit, not only for Jackson but for all of the towns in New Jersey,” said Township Council President Michael Kafton, one of the authors of the ordinance. “I hope every municipality in the state will enact a similar type of ordinance.”
Mayor Mike Reina, a member of the township Planning Board when the ordinance was drafted, called the decision “a rare win for David over Goliath.” “I want to leave my children and grandchildren a beautiful town with mature trees,” said Reina. “With this decision, we expect to work with developers to meet this goal.”
“It’s disappointing,” said Paul H. Schneider, the Red Bank attorney for the New Jersey Shore Builders Association, which challenged the ordinance in court. “There’s not much more to say. What this decision means, it’s going to cost more for people to buy a house.”
The ordinance was adopted in December 2003. In April 2004, the builders association filed suit, citing allegedly exorbitant costs they would incur by paying a per-tree fee of $200 or more to clear acres of land at a time.
Unanimous ruling
The high court’s decision essentially overturns both of the lower court decisions. The unanimous Supreme Court opinion, written by Justice Virginia Long, says the ordinance is a valid exercise of the township’s lawmaking power. “The details of the ordinance, including the tree replacement fee, the escrow fund, and the planting of trees and shrubs on public property where replanting at the original location is not feasible, are all rationally related to the broad environmental goals that inform the ordinance,” the ruling says.
The court rejected the contention made by Schneider that the tree replacement fee was an invalid tax designed as a revenue generator for the municipality.
At the original Superior Court trial, the township forester, Robert Eckhoff, testified that the fee was calculated based on the estimated cost of replacing a tree of similar size or a number of smaller trees.
The ordinance allows for the removal fees to range from $200 to as high as $800, based on the size of trees being cleared, but $200 was the standard charge.
“The cost to build a house will now depend on how many trees need to be cut in order to build,” Schneider said Wednesday. “There’s no more free lunch.”
Kevin N. Starkey, the lawyer who argued the case on behalf of Jackson, called the ruling ground-breaking. “It is a far-reaching decision insofar as it allows a local government to implement an ordinance designed to protect the environment, specifically trees,” said Starkey. Jeff Tittel, director of the New Jersey Sierra Club, said it would allow local governments to “do proper planning in their communities.” Tittel estimated about 200 municipalities in the state have similar tree removal ordinances.
Following suit?
“I think it’s an important component of the master plan of communities that are growing,” said Nancy Grbelja, mayor of one of Jackson’s neighbors, Millstone Township. Millstone, a growing suburban-rural community of about 37 square miles, does not have a tree ordinance, said Grbelja, who supports one.
The matter has come up in Millstone in recent years, Grbelja said. But the ordinance has faced opposition, such as it going against a property owner’s rights, Grbelja said.
“Hopefully, we’ll come up with something to satisfy everyone,” Grbelja said.
Sandy Batty, executive director of the Association of New Jersey Environmental Commissions, sees a broader impact. “The ability to actively manage local forests plays an increasingly vital role in state, national and even international efforts to address environmental degradation and climate change,” Batty said.
In effect, the ordinance remains in limbo until the Township Council can correct some vagueness in the measure, according to Starkey. Kafton said those issues will be addressed at the May 26 council meeting.
Additional Facts
In 2003, Jackson adopted an ordinance to address the adverse environmental effects of tree removal on private property. It requires property owners to obtain a permit for a fee to remove trees. The landowner may replace a tree that is removed with another tree on the same property or pay $200 into a tree escrow fund to have the township plant a tree on public property. The ordinance does not apply to dead or terminally diseased trees. Jackson has about $675,700 in the tree escrow fund, collected before a lower court invalidated the law several years ago.
Related Resources:
APP- Justices OK tree-clearing fee in Jackson
Supreme Court Upholds Jackson Township Tree Clearing Ordinance
Jackson Township Tree Ordinance 41-03
Developers Must Pay to Preserve Trees