The New Jersey Supreme Court recently upheld the validity of a Township ordinance that requires developers to replace the trees they remove during development or pay a fee into a special “tree escrow fund” dedicated to planting trees and shrubs on public property. In the case of NJ Shore Builders Association v. Township of Jackson, the state Supreme Court overruled decisions by both the Appellate Division and trial court that found the ordinance invalid because requiring developers to pay a fee for planting trees on public land bore no relationship to the stated purpose of the ordinance – to counter environmental hazards of clear-cutting trees. The lower courts found that the payment of the fee to plant new trees and shrubs on public property did not ameliorate the negative effects of removing trees on private property. The NJ Supreme Court disagreed, however, indicating that the Township’s exercise of the police power was rationally related to the broad environmental goals of ordinance. The court viewed the ordinance as a generic environmental regulation and not a planning or zoning initiative that implicates the Municipal Land Use Law. Both lower courts also invalidated the tree ordinance for being too vague because the ordinance did not define when removal was for a “useful or beneficial purpose” and because the ordinance failed to provide standards for the use of the escrow fund. The Township did not appeal this finding to the NJ Supreme Court and now must amend the ordinance to address these vagueness issues before it can go into effect.
What does the NJ Shore Builders case mean for developers and municipalities? Tree removal ordinances are a valid exercise of municipal police power, but they must have specific standards to avoid being void for vagueness.