NEW JERSEY SHORE BUILDERS ASSOCIATION v. TOWNSHIP OF JACKSON

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2507-05T52507-05T5

NEW JERSEY SHORE BUILDERS

ASSOCIATION, a non-profit

New Jersey Corporation,

Plaintiff-Respondent,

v.

TOWNSHIP OF JACKSON, a New

Jersey Municipal Corporation

located in Ocean County,

Defendant-Appellant.

______________________________________

 

Argued February 7, 2007 - Decided:

Before Judges A. A. Rodr guez and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1148-04PW.

Kevin N. Starkey argued the cause for appellant (Starkey, Kelly, Bauer, Kenneally & Cunningham, attorneys; Mr. Starkey, of counsel and on the brief; Dina R. Khajezadeh, on the brief).

Paul H. Schneider argued the cause for respondent (Giordano, Halleran & Ciesla, attorneys; Mr. Schneider, of counsel and on the brief; Afiyfa H. Bolton, on the brief).

PER CURIAM

The Township of Jackson (Township) appeals from the December 12, 2005 final judgment of the Law Division declaring that Jackson Township Ordinance 41-03 and Chapter 100 of the Township Code are "invalid, void and unenforceable." We affirm substantially for the reasons expressed by Judge Eugene D. Serpentelli in his December 1, 2005 written opinion.

These are the salient facts. In 2001, the Township adopted an ordinance regulating the removal of trees (2001 ordinance). The New Jersey Shore Builders Association (Association), filed an action in lieu of prerogative writs in order to challenge the 2001 ordinance. Judge James D. Clyne held the 2001 ordinance invalid and declared that it was ultra vires and unenforceable.

On May 12, 2003, the Township adopted the ordinance under appeal (2003 ordinance), which attempted to address the deficiencies in the 2001 ordinance. The 2003 ordinance created Chapter 100 of the Township Code, entitled "Tree Removal." It required that any trees removed from lands within the Township be replanted with new trees on the same site on a one-to-one basis. There are two exceptions to this general requirement: (1) trees located in designated "exempt areas" do not have to be replanted; and (2) in lieu of replanting, a landowner may pay a designated fee to a Tree Escrow Fund (TEF). The money in the TEF will then be used by the Township to plant new trees on other properties owned by the Township. The 2003 ordinance states:

A Tree Escrow Fund shall be established by the Township for the administration and promotion of tree and shrub planting projects on or within public properties or facilities.

. . .

Appropriations from the Tree Escrow Fund shall be authorized by the governing body and shall be used for the foregoing public purposes through the recommendation of the Township Forester, Township Engineer or Township Planner.

[Ord. 41-03, Section I(3)(a)(3).]

The 2003 ordinance further requires a landowner to obtain a permit prior to the removal of any tree with a trunk diameter breast height (DBH) of three inches or more. To obtain a permit, the landowner must submit an application and the requisite fee to the Township Forester who then reviews the application, inspects the site and files a completed report. The applicant must also provide a proposed tree replacement plan. The Township Forester, after consulting with the Township Engineer or the Shade Tree Commission, "may deny [a] permit if the following conditions exist: any negative effect upon ground and surface water quality, specimen trees, soil erosion, dust, reusability of land, and impact on adjacent properties." Ordinance 41-03, Section F(2).

The landowner applicant must pay tree replacement fees for each tree that is removed, but not replanted, on the same site on a one-to-one basis, or implement a reforestation scheme on other portions of the same property for each square foot of tree area removed. The replacement fee is set by a sliding scale (from $200 per tree, for trees six inches DBH to twelve inches DBH, to $800 per tree, for trees twenty-four inches DBH or larger).

In order to challenge the 2003 ordinance, the Association filed another complaint in lieu of prerogative writs. During a two-day bench trial, the Association presented testimony from its expert witness, Peter G. Steck, a licensed city and regional planning consultant. He opined that the 2003 ordinance does not serve its intended purpose. He also opined that, although tree removal could have a negative effect when the trees are located: on steep slopes; in a stream corridor; in buffer areas; or on wooded ridgelines; the substantive provisions of the 2003 ordinance, namely the TEF, does nothing to remedy these negative effects of tree removal.

The Township presented two witnesses, Jeffrey Nagle, a certified planner and landscape architect who was the primary drafter of the 2003 ordinance, and Robert Eckhoff, a certified arborist and tree expert who is the Township Forester. Nagle testified that when drafting the 2003 ordinance, similar ordinances adopted in other municipalities were used as a model. Nagle testified as to the purpose and intent of the 2003 ordinance, namely, to reduce indiscriminate tree removal. However, Nagle admitted that the 2003 ordinance allows the TEF to be used to plant shrubs and plants other than trees.

Eckhoff testified as to the general application process for an owner of a single family residential home or for a builder of new homes to obtain a tree removal permit. Eckhoff also testified as to the expenditures from the TEF. He testified that the replanted shrubs, plants, or trees must be on public property because they are not permitted to replant trees on private property.

On December 1, 2005, Judge Eugene D. Serpentelli issued a letter opinion finding the 2003 ordinance invalid for the following two reasons: (1) the means employed by the ordinance to control the tree removal were not rationally related to the goals of the ordinance; and (2) certain provisions of the ordinance were overly vague. The judge wrote:

At the outset, the court acknowledges that municipalities have the power and authority to enact ordinances in support of their police power and those ordinances, like statutes, carry a presumption of validity. Hutton Park Gardens v. West Orange Township Council, 68 N.J. 543, 564 (1975). That principle is based on the recognition that legislatures, both state and local, are better situated than courts to make policy decisions concerning public health, safety and welfare. Brown v. Newark, 113 N.J. 565, 571 (1989). See also Pheasant Bridge Corp. v. Warren Twp., 169 N.J. 282, 289 (compiling cases regarding judicial deference to local policy decisions). Consistent with the presumption, the courts will impute a proper governmental purpose or interest as the object to be served by the ordinance. If necessary, courts will infer an adequate basis to support the legislation, even if the purposes or findings are not expressed by the lawmakers. Bell v. Stafford Twp., 110 N.J. 384, 394 (1988)[;] [s]ee also Hutton Park Gardens, supra, 68 N.J. at 564-565; Burton v. Sills, 53 N.J. 86, 95 (1968), appeal dismissed, 394 U.S. 812[, 89 S. Ct. 1486, 22 L. Ed. 2d 748] (1969). The presumption of validity is rebuttable. However, the burden placed on the party seeking to overturn the ordinance is a heavy one. Hutton Park Gardens, supra, 68 N.J. at 564.

Therefore, the court will not review the wisdom of any policy determination which the legislative body might have made, but will examine the ordinance to determine its validity. In order to be sustained, an ordinance must (1) represent a reasonable exercise of the police power and bear a real and substantial relation to a legitimate municipal goal, and (2) the regulation "may not exceed the public need or substantially affect uses which do not partake of the offensive character of those which cause the problem sought to be ameliorated." State v. Baker, 81 N.J. 99, 105 (1979)[;] [s]ee also Pheasant Bridge Corp., supra, 169 N.J. at 290-291; Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251 (1971).

In this instance, the challenged ordinance contains a specific statement of purpose.

. . .

Thus, the evils addressed by the Ordinance are clearly stated as the indiscriminate, uncontrolled and excess destruction, removal and cutting of trees upon lots and tracts of land within the Township. The resulting conditions are described as creating increased soil erosion and dust, deteriorated property values and further rendering land unfit and unsuitable for its most appropriate use, thereby causing a deterioration of conditions affecting the health, safety and general well-being of the inhabitants of the Township of Jackson. Thereby, the aim of the Ordinance is to ameliorate those hazards by regulating and controlling the indiscriminate and excessive cutting of trees in the Township.

. . .

Without addressing the question of whether the municipality could require a landowner to replace any trees removed on private property subject to some reasonable standards and exceptions relating to the legitimate use of the premises, the central question becomes whether a payment to an escrow fund for trees not to be replaced on site in any way addresses the evils sought to be controlled by the regulation of the indiscriminate and excessive cutting of trees on the specific properties. It is to be remembered that the ordinance provides that the escrow fund is to be utilized for the planting of trees and shrubs only on public properties throughout the Township. The [Borough's] expert witnesses failed to establish any nexus between the planting of trees on the public property and the prevention of soil erosion, dust deteriorating property values and the suitability of land on the sites from which the trees were removed. Put another way, the witnesses failed to explain how the planting of the trees on public lands would have any beneficial effect upon the properties from which trees were removed or how it would prevent the hazards caused by clear cutting in future development.

The Township's witnesses did suggest that it was the hope of the drafters of the Ordinance that the cost of replacing trees on site would be less onerous than the payment which must be made to the escrow fund for trees removed and not replaced. However, as plaintiff's brief asserts, that thinking, which is not supported by the evidence in the record, in any event would cause the court to examine the issue of whether the escrow fund was being utilized as an indirect tax.

The experts also made passing reference to the need to maintain the biomass within the Township. In that regard, the Forester explained that the presence of a tree created a canopy effect producing ecological benefits to the property upon which the trees are planted. The argument was not pursued adequately in the record. Furthermore, it is tenuous at best. First, the trees that are planted on public property only have to be two inches in diameter and therefore will not replace larger trees which might have a significant canopy or ground cover. More importantly, the concerns which are the target of the Ordinance would not be avoided in any respect by the planting of trees which provide biomass at other locations. Thus, the court concludes that the method chosen to combat the evil perceived, that is, the creation of the Tree Escrow Fund and the utilization of the fund to plant trees on public property only, does not bear a real and substantial relationship to the purposes of the Ordinance.

. . .

As noted, Section C(1) provides for a tree save plan review by the Forester with the recommendations of the Shade Tree Commission, Engineer and Environmental Commission, where appropriate. The Ordinance completely fails to suggest what criteria should be utilized to determine whether a particular application should be subject to scrutiny by all entities and which applications would contain a lesser review. Additionally, the Ordinance provides no guidance to each of those four entities in terms of the criteria which should be utilized in making its recommendation. Furthermore, the Ordinance contains inconsistent provisions relating to the person or agency responsible for its enforcement (compare Section A(3) to Section O).

. . .

Next, the Ordinance in Section F(1)(c) vests the Forester with absolute discretion to determine what will constitute an "other useful or productive activity" or a "useful or beneficial purpose." Again, there are no standards or criteria to guide the exercise of the Forester's discretion in the implementation of this language.

Third, the provisions of Section F(2) relating to "negative impact" which include "negative effects" on ground surface water quality, specimen trees, soil erosion, dust, reusability of land and "impact on adjacent property" suffer from the same absence of clear and discernable standards by which the Forester can make informed and consistent decisions and by which applicants can also be aware of the standards which must be met. In this instance, the Ordinance fails to even suggest to the Forester what negative effects or impact on adjacent properties would constitute a sufficient basis to deny an application. It should be noted that in Judge Clyne's prior ruling, the court held the phrase "significant adverse impact" to be impermissibly vague because it failed to specify what was meant by the phrase. The Township's response was to amend the ordinance to substitute the words "negative effect" in place of "significant adverse impact" but no effort was made to define that phrase or provide criteria by which the Ordinance enforcement would be guided. Furthermore, the Ordinance continues to contain the imprecise phrase relating to "impact on adjacent properties." Virtually every use of land will have some impact on contiguous property. The issue must be whether it is so negative as to warrant a denial of the permit. In that regard, the Ordinance must contain criteria which will assist in guiding reasonable and consistent decisions.

Finally, Section I(3)(a)(3) allows the utilization of the Tree Escrow Fund for the "administration and promotion of tree and shrub planting projects on public properties or facilities." In his previous ruling, Judge Clyne reviewed the earlier version of this provision and found it unenforceable because it gave the Township discretion to spend the escrow funds in virtually any way it pleased. He noted that the ordinance failed to "specify any criteria upon which the governing body must rely in order to use the escrow fund."

. . .

As noted above, an ordinance must be reasonably precise so that property owners may understand the restrictions that are imposed upon the use of their land and to avoid discriminatory application. [Jantausch v. Verona, 41 N.J. Super. 89, 104 (Law Div. 1956), aff'd by, 24 N.J. 326 (1957).] This ordinance clearly fails to meet the well established standards of precision and is therefore void for vagueness.

The Township appeals, contending that its tree removal ordinance: (1) "is a valid exercise of the municipal police power for the protection of the health, safety and welfare of its residents;" and (2) "provides proper standards to guide and limit the forester's discretion." We reject these contentions.

We agree, as did Judge Serpentelli, that the Borough has the right to exercise its police powers to protect the health, safety and welfare of the community. N.J.S.A. 40:48-2. We also agree with the trial judge that the 2003 ordinance is not a valid exercise of that power because the payment of a fee to plant new trees on other public land does not in any way address the objective of ameliorating the negative effects of removing trees on private property. Thus, the 2003 ordinance fails to "bear a real and substantial relation to a legitimate municipal goal." Baker, supra, 81 N.J. at 105.

We also reject the argument that the 2003 ordinance provides proper standards for its implementation. The trial judge's thoughtful analysis reveals that it does not. It is well-settled that an ordinance must be clear and explicit in its terms, setting forth sufficient standards to prevent arbitrary and indiscriminate interpretation or application by local officials. Damurjaian v. Bd. of Adjustment of the Tp. of Colts Neck, 299 N.J. Super. 84, 95-96 (App. Div. 1997); Township of Maplewood v. Tannenhaus, 64 N.J. Super. 80, 89 (App. Div. 1960), certif. denied, 34 N.J. 325 (1961); 8 McQuillin, Municipal Corporations (3d ed. 1991), Sec. 25.59. Here, the Borough did not provide such standards in the 2003 ordinance.

 
Affirmed.

Nagle and Eckhoff hold their positions as consultants to the Township, but are employees of a private company, Consulting Municipal Engineers Associates.

See also N.J.S.A. 40:37-5 (defining the powers of the Shade Tree Commission).

(continued)

(continued)

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A-2507-05T5

July 11, 2007