Supreme Court Upholds Jackson Township Tree Clearing Ordinance

On May 13th 2009 the New Jersey Supreme Court reversed the Superior Court and Appellate Division and held that the Township of Jackson’s tree removal ordinance is 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. Rather than a land use regulation the court viewed the ordinance  as enabled under plenary state legislative authority using the  police power, which justifies legislation to further
the public health, safety, welfare, and morals. The Township specifically declared that it was enacting the tree removal ordinance under the police power statute, N.J.S.A. 40:48-2.  The Court distinguished the Ordinance from one enacted under the Municipal land Use Law and held that while the ordinance touches on the use of land, it is not a planning or zoning initiative that implicates the Municipal Land Use Law. As Police-power legislation  the Ordinance must not be unreasonable, arbitrary, or capricious. Additionally, the means must have a real and substantial relation to the object sought to be obtained. Ordinances enacted pursuant to the police power are presumptively valid. Absent a sufficient showing to the contrary, it will be assumed that the legislation rested upon some rational basis within the knowledge and experience of the legislature.generic environmental regulation.

The Court concluded that the tree-removal ordinance was valid. The Ordinance recognized that the removal of trees on any property affects the health, safety and well-being of the Township’s inhabitants and that trees are an important ecological resource. Moreover the Court rejected the argument that the ordinance does not achieve its stated purpose because it permits large trees on private property to be replaced by smaller trees and shrubs on public property and the argument that the tree replacement fee is an invalid tax. As a result of the decision the ordinance remains in question, however, because the Appellate Division affirmed a determination by the trial court declaring the ordinance to be void for vagueness, including for failing to more specifically define when removal is for a “useful or beneficial purpose” and failing to provide standards for the use of the escrow fund. 

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