John Muir (1838-1914), naturalist and author,
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.
Timing is everything. Some advocates in Santa Monica last week learned that lesson – the hard way. Treesavers v. City of Santa Monica Court of Appeal of California, Second Appellate District, Division Eight, 2009 Cal. App. Unpub. Lexis 3130, (April 22, 2009).
Notice that this is one of those unpublished decisions – the kind you can’t cite etc., sort of like what happens to you if you tear off that tag on the mattress. When I see a decision that says not to be published, cited, quoted, read, whatever – it’s the first one I want to read. Ever get one of those e-mail messages that says: “Bobby Bozo wishes to recall his email…?” When I see one of those I figure it has to be something really good, right? Go ahead, admit it, you look for that recalled e-mail…
Well, so too with these unpublished decisions. Why do the judges decide something and then tell folks they shouldn’t read it? Yes, I know, it is usually a narrow decision, based on the law and facts particular to that case, and whatever.
The basic facts are these. The City of Santa Monica didn’t like the Ficus trees that were along certain roads. Their roots are shallow and buckle the sidewalks. Out go the Ficus, in come the Jacarandas and Gingkos, apparently much better behaved tress.
As the city reported:
“Ficus roots grow close to the surface, are destructive to the surrounding paved areas and generate a high level of sidewalk maintenance expenditures. Replacing the Ficus with the Ginkgo will reduce sidewalk maintenance expenditures and liability exposure in this pedestrian oriented district.”
Here’s a Ficus tree:
Here’s a Jacaranda:
And here is a Gingko:
“The plan calls for the creation of a cohesive district in the heart of downtown through a coordinated planting plan with variegated color and texture. Along the north-south streets, an alternating pattern of London Plane trees is proposed on Second, Fourth and Sixth Streets, with Jacaranda trees on Fifth and Seventh Streets to complement the existing Jacarandas on the Third Street Promenade. The existing Ficus trees on these streets will be ‘reforested’ over time with the new trees; the replacement of every other Ficus is proposed as a first phase improvement. In five to seven years, after the trees are well established, a second phase of replanting will replace the remaining Ficus.”
Treesavers, an unincorporated association of individuals who reside in the County of Los Angeles, opposed the plan, participated in the hearing and ultimately sued. But they were too late in bringing the action – and that’s the lesson here for both sides:
“The bottom line problem with Treesavers’ current CEQA case is that the City Council approved the pedestrian and streetscape improvement project at a public meeting in October 2005, a meeting at which Jerry Rubin spoke about the removal of the ficus trees, and Treesavers did not file its petition for writ of mandate in the trial court until October 2007. The petition was too late.”
The time for the action started with the first decision:
“The 180-day limitations period starts running on the date the project is approved by the public agency, and is not re-triggered on each subsequent date on which the public agency takes some action toward implementation of the project.”
Always keep your eye on the statute of limitations.