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May 13, 2009

Re:  NJ Supreme Court Rules That Tree Replacement Ordinance Valid

Dear Mayor:

The New Jersey Supreme Court today overruled the Appellate Division and trial court and found that a Jackson Township ordinance requiring a property owner to either replace any tree that is removed or pay into a fund dedicated to planting trees and shrubs on public property was valid. In the case of NJ Shore Builders v Township of Jackson (A-83-2007), the court held that, contrary to the views of the lower courts, the tree removal ordinance was a valid exercise of police power because the details of the ordinance, including the tree replacement fee, the escrow fund, and the planting of trees and shrubs on public property when replanting at the original location is not feasible, are rationally related to the broad environmental goals that inform the ordinance.

The court pointed out that ordinances enacted under the police power statute are presumed valid.  The lower courts, therefore, were in error to place the burden on the municipality to justify the ordinance, when in fact the plaintiff was required to prove its invalidity.  Furthermore, while replanting by the owner on its property was optimal, when this could not be done, a contribution to a fund for planting on public property was the only alternative, since the municipality could not mandate that replanting be done on other private property.  As long as the required contribution did not exceed the municipality’s cost of replanting, and there was no proof that it did, the court rejected the plaintiff’s claim that this fee was actually a revenue raising tax.

To access this case, please go to: http://www.judiciary.state.nj.us/opinions/index.htm

If you have any questions or concerns about this communication, please contact Deborah M. Kole, Staff Attorney, at the League, ex. 137, or at dkole@njslom.com

Very truly yours,

 

William G. Dressel, Jr.
Executive Director


      

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