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The New Jersey Supreme Court Has Been Reading John Muir

May 19, 2009
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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 ( 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.

An Apple a Day Might Not Keep the ZEO Away…in Danville, Illinois

May 18, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

If you live in a residential neighborhood, within the canopy of the extra-territorial jurisdiction of Danville, Illinois (see last week’s posting on extra-territorial jurisdiction), that looks like this


 Courtesy Google Maps

 and you have 6.3 acres out behind your house that looks like this


 Courtesy Google Maps

 and you want to add more apple trees to the 85 already there and branch out to operate an organic apple tree orchard, you might have to rezone your land from residential to agriculture and you might not be able to get it because it would could be spot zoning. 

So goes the story of this couple, Lindsay and Marie Varner, who lived in town until 1986, then went to Florida and are now returning to reestablish roots – their own and those of the apple trees.  The parcel had 100 apple trees on it planted 25 to 30 years ago.  Through the fruits of their labors, the Varners saved 65 of them and planted 20 new ones. Here is the still-smiling couple with their trees, courtesy of The “Zoning ruling won’t affect couple’s plans for orchard,” May 11, 2009.   google3

It seems that they can plant trees and sell apples off-site, but if they planted 300 more trees, they would have to get a rezoning, said the planner. “Couple withdraws rezoning request,” Commercial-News, May 16, 2009.  The Varners had applied for a rezoning but the zoning commission, to stem the expansion, recommended denial, so the Varners withdrew their application before it went to the city ouncil.  The Commercial-News reported: “The zoning commission’s recommendation, however, was to deny the rezoning due to: it being spot zoning in the residential neighborhood, not in compliance with the city’s future land-use plan and neighbor concerns about the agriculture zoning designation meaning various possible future business uses for the property.”

One commissioner, as reported The News-Gazette May 11th article, went out on a limb to question why they should even hear the request because the commission would have to deny it as it singled out a small area for special treatment and therefore would be illegal spot zoning. See also, “Group denies apple orchard,” Commercial –News, May 7, 2009 .

I leafed through the zoning regulations searching “agriculture”, “trees”, “orchard”, and “300”, and I can’t find anything regulating apple orchards.

Now, if you think the idea of possibly requiring a permit to expand an orchard seems a little farfetched, you might consider the planner’s argument that drainage and runoff and pesticides could be problems. “Couple want to open apple orchard,” Commercial-News March 30, 2009. Or maybe you reject that as barking up the wrong tree.

But here’s the pièce de résistance, to go right to the core, the planner has concerns about the neighboring residential properties and wants to know if the Varners will provide a buffer. The Danville zoning ordinance defines “buffer area” as “land used to visibly separate one use from another” and then says that buffers may include trees.  So, it looks like the Varners may have to plant some trees to buffer their trees from the neighbors.

Posted in Land Use


May 15, 2009
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Posted By: Nick Miller, Partner, Miller & Van Eaton

The Congress approved a delay in the Digital Television Conversion from February until June 12, 2009.  This additional time has allowed the Federal Communications Commission and the Department of Commerce’s National Telecommunications and Information Administration to enhance and restructure the federal government’s consumer outreach programs.

Among the good news items:

  1. The backlog for federal discount coupons for DTV converters is gone.
  2. The agencies have recruited fire departments and community organizations throughout the nation to assist homebound and vulnerable citizens.
  3. The agencies have improved call centers and help lines.
  4. The broadcasters are doing more to inform and to demonstrate to individual consumers whether the new over-the-air digital signals will be available without improved antenna arrays.
  5. Many broadcasters are converting ahead of June 12, providing real experience for the call centers and outreach agencies.

The story is not over—but the trends are finally positive. 

And please do your part by sharing this Consumers’ Union public education package with your electeds, agencies and local media: CLICK HERE for the PDF

Gold in the Trailings

May 14, 2009
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Posted By: Nick Miller, Partner, Miller & Van Eaton

The economic news for local governments and their attorneys has not been good.  Big time cutbacks in local budgets have forced major changes in the law offices advising local governments.  In the midst of this economic detritus, some good news is emerging.

Much like the middle income families that can now afford to buy houses that are in foreclosure, City Attorney offices may now have the chance to attract and hold some of the very best new lawyers graduating this June.  We all know the big law firms have driven associate salaries far beyond government salare levels and the big firms have thereby discouraged many young attorneys from pursuing public service careers.  Now the economy is forcing the large firms to change their hiring patterns.  And the door may be opening for government law offices to compete on equal footing for this young talent.

Recent news headlines on law firms have focused on the tragedy of job losses and personal tragedies among recently fired attorneys.  This is grim, heart-rending news.  But underneath these headlines is a less reported trend.  The biggest firms are changing their offers to third year law students and first year attorneys.  They are deferring start dates for new attorneys, in many cases until January 2010 or even June 2010.  And they are rolling back associate starting salaries to levels comparable to the late 1990’s.

This change offers City Attorneys the chance to compete more equally for this talent pool.  Local government law has always had the attractive qualities of public service, challenging and wide ranging legal issues, and family-friendly working hours.  To this list can now be added competitive compensation, and a chance to try public service before stepping into 2400 hours/year work environs.

The salary picture is better for three reasons.  Associate salaries are being rolled back o levels comparable to the late 1990’s.  Also most of the large firms are offering to pay the deferred attorneys some portion (often 50%) of the normal first year salary in return for accepting the delayed start date.  And the over-enrollment of attorneys in the big firms means many firms will not object if a first year attorney decides to not pursue the big firm job, even after accepting the deferred compensation for several months.

So now is the time to reach out to your local law school placement offices.  And reach out to your colleagues in larger firms.  Tell them you are looking to help June graduates or 2008 deferred graduates find useful legal work.

What’s In Is In and What’s Out Is Out

May 11, 2009

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

Some states enable extra-territorial jurisdiction for regulation of land development.  Here is how Professor David W. Owens of the University of North Carolina’s Institute of Government (and planning school classmate of mine) describes North Carolina’s enabling legislation which allows municipalities to plan and regulate 1 to 3 miles from their boundaries, the distance based on the population of the municipality:

“When a city adopts an extraterritorial boundary ordinance, the city acquires jurisdiction for all of its ordinances adopted under … the General Statutes and the county loses its jurisdiction for the same range of ordinances. This includes not only zoning and subdivision ordinances, but also housing and building codes and regulations on historic districts and historic landmarks, open spaces, community development, erosion and sedimentation control, floodways, mountain ridges, and roadway corridors. The city does not acquire, nor does the county lose, jurisdiction for regulations adopted under the general ordinance-making power…, such as junked car or noise ordinances. So, for example, if sign regulations are a section of a city zoning ordinance, they apply in the extraterritorial area; however, if they are part of a separate sign ordinance, they do not.” 

Click here for an excellent report he wrote on the North Carolina experience.

Georgia was one of the first states to give a municipality extra-territorial jurisdiction for health and safety.  Interestingly, it dates back to 1825 and was upheld in 1843.  See footnote 3 of Professor Owen’s report.  But from footnote 4 of the Owens’ report and the decision just handed down by the Georgia Supreme Court, it does not appear that Georgia is among the handful of states with broad extraterritorial planning and zoning authority.

What happened in the case handed down by Georgia’s highest court on May 4th is that the Town of Braselton annexed a 26-acre parcel in March 2005, then created an overlay district encompassing that land and more outside its boundaries, and imposed right-of-way improvements as a condition of approval of a second phase of development, just outside of the municipal boundaries, but part of a larger, single development within the overlay zone.

Specifically, the town wanted the developer to provide “gutter widths, minimum landscape strips, multiuse paths, streetlights and trees” along Georgia State Route 211 just outside the town’s border which is delimited by the right-of-way for the state highway.  The improvements required as a condition of approval included a 1,500-foot long sidewalk along the highway, and outside of the town, which the developer didn’t want provide.

Click here for a news story. Supreme Court rules against Braselton in zoning battle” May 6, 2009, Gainesville Times.

Here’s the project from the developer’s website at


 Here’s the project up close:


Click here for the decision holding that Braselton had no extraterritorial jurisdiction and couldn’t require the improvements in that part of the overlay zone beyond its boundaries.

As of May 6th, the town attorney, noting that he could move to have the court reconsider its decision, said: “We’re still studying the decision and trying to determine what the town’s options are or may be.”

OnlineAthens reports on an ugly back-story.  Seems the developers’ former lawyers (the developer was represented in this appeal by one of Georgia’s former attorneys general), submitted a survey map they knew was incorrect.  The trial judge fined the lawyers $18,000 and then dismissed the case when the lawyers didn’t pay up.  That, the Georgia Supreme Court said, was not a proper basis for dismissal.  “…Braselton’s attorney, Kelly Hundley, said materials have been sent to the State Bar of Georgia about Armstrong and Moeser [the former lawyers for the developer who submitted the incorrect survey map] that could lead to their professional licenses being suspended or revoked.” “Court rules against Braselton on right-of-way demand” May 4, 2009, click here for a copy.

File this in that bulging folder we all carry around in our heads: “What Were They Thinking?”.

Yikes, who would have thought extra-territorial zoning could be this exciting?

Posted in Land Use
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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.