New Jersey tree-escrow ordinance upheld
The New Jersey Supreme Court yesterday upheld an ordinance in Jackson Township that requires housing developers to replace the trees they remove or pay into a special "tree escrow fund."
The New Jersey Supreme Court yesterday upheld an ordinance in Jackson Township that requires housing developers to replace the trees they remove or pay into a special "tree escrow fund."
More than 200 other municipalities have similar ordinances, according to the New Jersey Sierra Club. Those ordinances now are protected against similar legal challenges, Sierra Club director Jeff Tittel said.
He called the ruling "a milestone in the ability of towns to protect the environment and do proper planning."
Jackson Township's 2003 ordinance, challenged by the New Jersey Shore Builders Association, was thrown out in 2005 by a state Superior Court judge.
An appellate court upheld that ruling, but the Supreme Court unanimously overturned the lower courts.
The ordinance said developers with an area less than 40,000 square feet could remove half the trees. For lots greater than that, developers could remove trees in a 20,000-square-foot area.
If developers removed more trees, they would have to replace them. If the developers could not, they would have to pay into a fund used to plant trees and shrubs on public land.
The ordinance was based on a scheme used by the state for replenishing trees on state property.
An expert for the builders association argued the fee amounted to a tax.
The Superior Court and the Appellate Division found that forcing developers to pay a fee for planting trees on public land had no relationship to the stated purpose of the ordinance - to counter the hazards of clear-cutting trees.
But the Supreme Court disagreed, saying the ordinance, including the fees, is related to the Ocean County township's "broad environmental goals."
The lower courts also invalidated the ordinance for being too vague in some areas, including for failing to provide standards for the use of the tree fund.
Those lower-court findings were not challenged in front of the Supreme Court. The township will have to amend the ordinance to resolve those issues before it can go back into effect.