Posted by: Patricia Salkin | June 4, 2009

Tree Removal Ordinance Upheld Including Tree Replacement Fee and Planting on Public Property When Replanting in Original Location is not Feasible

The New Jersey Supreme Court overruled both the trial court and appellate court in upholding a municipal tree removal ordinance as a valid exercise of the 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 Township adopted the ordinance to address the adverse effects of tree removal on private property, to protect the environment and to promote the public health, safety and well being of the residents of the Township. The ordinance requires, in part, that a property owner apply to the Township Forester for a tree-removal permit, followed by a review of a tree save plan by the Shade Tree Commission., Township Engineer and the Environmental Commission. If a permit is granted, a fee is assessed. Where trees are removed, they must be replaced unless they are dead or fatally diseased. Depending on the size of the removed tree, the ordinance sets forth a scheme for the quantity and quality of the plantings that are to be located on another portion of the property. If the property owner is unable to replant, the owner must pay a replacement fee based on the size of the tree removed. The fee is then deposited into a Tree Escrow Fund that is to be used “for the administration and promotion of tree and shrub planting projects on or within public properties or facilities.”


Noting that the police power is subject to the constitutional limitation that it not be unreasonable, arbitrary or capricious, the court granted legislative deference to the municipality absent a sufficient showing that the ordinance lacked a rational basis. The Court was clear that it was not its job to weigh the evidence for and against a legislative enactment, nor was it the Court’s place to evaluate the wisdom of the policy behind the ordinance. Addressing the allegation that the ordinance does not achieve its intended purpose since large trees removed on private property can be replaced with smaller trees and shrubs on public property, the Court first noted that an ordinance need not be perfect to pass muster and that even smaller trees and shrubs can have an important impact on the environment. Further, since the Township cannot mandate the replanting of trees on someone else’s private property, its effort to mitigate the effects of tree removal by allowing replanting on public lands is rational. The Court found reasonable the payment of a fee into an escrow account where replanting is not feasible, and noted that this methodology is similar to what the State does when mitigating freshwater wetlands losses. Further, the Court determined that the replacement fee owned when replanting is not feasible is not a tax, relying in part on the fact that there was no evidence suggesting that the fee exceeds the cost of administration of the program and the replacement itself of the tree.


New Jersey Shore Builders Association v. Township of Jackson, 2009 WL 1310781 (NJ 5/13/2009).

The opinion can be accessed:

Special thanks to Dwight Merriam, Esq., FAICP of Robinson & Cole in Hartford, CT for forwarding this case. Read his write-up on the IMLA Blog here

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