International Municipal Lawyers Association - Local Government Blog

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

John Muir (1838-1914), naturalist and author,

courtesy of Wikipedia

said: “I never saw a discontented tree. They grip the ground as though they liked it, and though fast rooted they travel about as far as we do.”

The New Jersey Supreme Court went far this last week in supporting local tree ordinances.

This is a Bonus Blog in addition to the usual weekly fare, thanks to my friend, Andy Davis, a lawyer and Vice President at Paulus, Sokolowski & Sartor (www.psands.com) a multi-disciplinary engineering and architecture firm based in New Jersey.  Andy was with the Hackensack Meadowlands Development Commission when I was consulting with them for most of a decade on land use and wetlands matters.  He sent me the advance sheet of the decision and, since I just did a posting on trees, I thought it apropos to bring this case to your attention as soon as I could.  CLICK HERE for the decision.

The sound bite version is this – the court upheld a local tree removal ordinance under the police power on a rational relationship basis.  The ordinance requires replacement of any trees removed on private property or, if they can’t be replaced, a replacement fee paid into a fund which the township uses to plant trees in public places.  The ordinance, the court held, is “…a generic environmental regulation, and not a planning or zoning initiative.” At 20. It is not subject to the state’s land use planning and regulation enabling law, the Municipal Land Use Law.

The court applied the rational relationship test at the most minimal level, finding the ordinance rational if there wasn’t a sufficient showing to the contrary and saying “The job of the reviewing court is not to weigh the evidence for or against the enactment, or to evaluate the wisdom of the policy choice made.” At 22.

The court also said that “…the trial judge took a wrong turn when he placed the burden on the Township to justify the ordinance…” At 22.  Municipal attorneys in New Jersey must be dancing in the streets.

The Township needs only to show that the ordinance “advance[s] the cause it was intended to achieve.” At 24.

The court said that the challenging builders group “cannot see the forest for the trees.” (I doubt the builders chuckled over that one…) At 26. And finally, the court held the fee was not a tax. At 28.

In New Jersey, it’s Trees 1 – Builders 0.