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Trees Have Standing in New Jersey

By Buck Abbey, ASLA, Robert Reich School of Landscape Architecture, Louisiana State University




Since 1971, Oswego, Oregon has placed restrictions on tree removal on both private and public property, however, Jackson Township, N.J. takes it a step further with tree replacement fees and mitigation funding, regulations contested by developers in court.
Photo: Oswego, Oregon

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New Jersey Trees

The indiscriminate, uncontrolled and excess destruction, removal of trees upon lots and tracts of land within Jackson Township New Jersey is important to the residents of this community. They understand tree removal can result in deterioration of the community, affecting the health, safety and general well-being of the inhabitants.

The tree ordinance for this community intends to regulate and control the indiscriminate and excessive cutting of trees. The enforcement of the tree ordinance is the duty of the shade tree commission through the town forester. The commission is charged with the regulation, planting, care and control of shade, ornamental and evergreen trees and shrubs in the streets, highways and public places, as well as tree removal on all lands within the township.

The importance of trees has gained more importance not only in Jackson Township, but the entire state of New Jersey and perhaps the rest of the U.S.




The New Jersey Supreme Court's upholding of Jackson Township's tree ordinance has huge environmental implications for every tree ordinance in the nation."--Buck Abbey
Photo: Valley Crest Tree Co.

Trees Have Standing

Recently the New Jersey Supreme Court in New Jersey Shore Builders Association v. Township of Jackson in a 7-0 decision sanctified a technical point associated with many tree ordinances that may shake up the way tree ordinances are written from coast to coast. The N.J. Supreme Court overruled the trial court and the appellate court and 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. This court decision may lead to enhanced funding for tree planting in local communities to the extent that there will be no net loss of trees as a result of development. But more importantly, this decision may be the key to preserving urban trees in this day of strip the forest and build, build, build.

Jackson, like many other communities has a tree ordinance with a stated procedure for seeking permits to remove trees on development sites. The method consists of several steps including inventory, developing a tree save plan, a replanting plan and securing a tree removal permit. This ordinance sets forth a reasonable method of requiring tree replacement following construction. Known variously as tree mitigation, tree replacement requirement, or canopy preservation standards, the purpose of the regulation is to assure that removed trees at a construction site are replaced.

These trees may be replaced on site or replaced off site, usually on public land. In some instances, when on site replacement and off-site mitigation is not practical, communities generally will allow a land developer to pay cash "in lieu of" replacement planting. Commonly so many dollars per tree is deposited in a local tree and landscape fund and is used by the municipality to plant trees and make landscape improvements. In Jackson a "one-to-one tree replacement" plan is adopted for each tree six inches or greater to be removed. Replacement costs set forth vary from $200 for a six-inch tree, up to $800 for a 24-inch tree.




The N.J. Supreme Court may lead to enhanced funding for tree planting in local communities to the extent that there will be no net loss of trees as a result of development. But more importantly, this decision may be the key to preserving urban trees in this day of strip the forest and build, build, build.

Not So Fast

Local developers, not happy with the tree ordinance language the property forest management requirement and the tree escrow fund, went to court to make the township prove the validity of its tree preservation ordinance.

The N.J. Supreme Court declared "in-lieu of funds" can be justified and money can be raised by local government for the replanting of trees removed on private property. This means that trees have standing with the court, each tree has monetary value and each tree removed on private property will be replaced on-site or at an approved off site location. The court made it clear trees are a community resource that benefit everyone no matter where arbors are growing. The court recognizes that trees sequester carbon by scrubbing air of carbon dioxide, produce oxygen, transpirate storm water, reduce sedimentation, modify climate, produce biomass through the conversion of energy and increases diversity. Therefore it is in the interest of all to protect trees in Jackson.

Lessons Learned

This decision in New Jersey has huge environmental implications for every tree ordinance in the nation. The decision benefits those that wish to preserve or develop the urban forest. The decision will put more emphasis on tree planting than on preserving trees. The New Jersey Sierra Club hails it as a "milestone in a community's ability to protect the environment and do proper planning."

Those that wish to keep trees in their urbanizing and urban communities will have an ongoing source of funding to replace trees. Since the urban forest does not self-generate as a natural forest, this new ruling will set in motion a process for no-net-loss of urban forest trees.

Developers will find it much less costly to replace trees rather than try to build around them. They will, upon reflection, find that lower costs will prevail by paying the in-lieu fee rather than using special construction techniques around trees, techniques that often fail. Developers will now be able to move the urban forest around their development rather than build their development around the urban forest.

The New Jersey decision should be looked into by any community wishing to maintain their tree canopy.


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May 19, 2019, 8:20 am PDT

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