Q We have a commercial property owner who is seeking several variances to expand his business. Since he will be increasing impervious coverage through clear cutting, he will not be able to replace the number of trees required. Instead, he plans to seek credits by paying into a Township Tree Bank for credits. I have heard that this practice has been challenged. Can you tell me the status of this practice?
A I think the case you are referring to is New Jersey Shore Builders Ass’n v. Township of Jackson, 199 N.J. 38. The facts of that case are similar to these. In that case, the town ordinance required a property owner to replace any tree that was removed or, if that was not feasible, to make a payment into a fund dedicated to the planting of trees and shrubs on public property.
The Court found that this was a valid exercise of a town’s police power and upheld the ordinance. The Court stated: “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.”
Since the Supreme Court upheld the ordinance, there should be no further challenges to it. Therefore, if your town has an ordinance like this, I think they should be fine.
Q Our municipality attempted to sell a parcel of land at a public auction. At the first auction, the winner backed out. At the second and third auctions, there were no bids at all. Is it possible to sell this parcel through a real estate agent in a private sale?
A The circumstances in which a municipality may sell a parcel of land at private sale are very limited. According to the Local Lands and Buildings Law, specifically N.J.S.A. 40A:12-13(b), private sales can only be made to:
- Another public body;
- A person who submitted a bid in an auction where all bids have been rejected. The sale must be for the price and terms of the highest rejected bid. Terms and conditions remain identical;
- Correct title defects in previously sold property;
- Sell an easement over properties previously conveyed when the easement is no longer needed for public purposes;
- The owner of real property contiguous to the property if the parcel of land is smaller than the minimum required under the zoning ordinance.
Absent these limited situations, a municipality is not permitted to sell land privately. There are other situations in which a town may sell a parcel of land for a nominal amount, but of course you would not receive any financial benefit from that.
Q Our Clerk had an emergency, and we fear that she may not be at our next council meeting. We do not have a deputy. Can the Manager appoint someone to act as the Clerk to take minutes, etc., or do we have to cancel the meeting?
A I think the Mayor would be fine doing that. OPMA requires minutes and requires that they be available, but does not prescribe who must take them:
So long as the minutes are taken by someone connected with the municipality, and show everything required above, and are approved by the council, I do not think it matters who takes them.
10:4-14. Minutes of meetings; availability to public
Each public body shall keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with section 7 of this act.
This column is for informational purposes only, and is not intended as legal advice.