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<br />There must be some objective description of
<br />the established character of the immediate
<br />area or neighboring areas, and there must be
<br />objective standards to determine what renders
<br />a proposed structure "appropriate."
<br />
<br />The written narrative serves as a check on the
<br />fallibility of that inclination. The exercise of
<br />putting the visual acceptability into words also
<br />serves to clarify the focus of that acceptability.
<br />The catalogue should also have sections
<br />of photographs and narratives illustrating
<br />styles, elements, materials, massing, detailing,
<br />and relationships to street frontages and abut-
<br />ting properties thatthe community finds unac-
<br />. ceptable. The photographs and written nar-
<br />ratives should be tested by asking architects
<br />who practice in the community to meet with
<br />the architectural review board to critique, chal-
<br />lenge, and clarify the catalogue. Theexercise of
<br />compiling the catalog could help the commu-
<br />nity refine its desired vision forthe community
<br />and its review standards.
<br />The boards and commissions that imple-
<br />ment architectural review regulations need
<br />formal instruction with regard to their roles as
<br />judges in the quasi-judicial process, the ele-
<br />ments ofthe regulatory criteria to which proof
<br />must be directed, and the types of proof that
<br />constitute competent substantial evidence.
<br />Approaching these programs in this manner
<br />willenhance the lawfulness of the regulations
<br />and their application to property owners and,
<br />consequently, the integrity of the programs.
<br />
<br />
<br />NEWS BRIEF
<br />
<br />TREES WIN BIG IN NEW JERSEY
<br />
<br />By Lara A. Lucero, AICP
<br />Trees stand tall and silent in most communities,
<br />often overlooked and neglected. In New Jersey,
<br />they got their dayIn court. In May, in New jersey
<br />Shore Builders Association v. Township of jack-
<br />son (Supreme Court of New Jersey, Decided May
<br />13,2009,2009 Wl 1310781), that state's highest
<br />court issued a resounding endorsement of the
<br />regulations enacted by the Township of Jackson
<br />requiring property owners to replace any tree
<br />that is removed or pay in;o a fund dedicated to
<br />planting trees and shrubs on public property.
<br />
<br />168
<br />
<br />In 2003, the township specifically de-
<br />clared it was enacting the tree removal ordi-.
<br />nance under the police power statute (N.j.S.A.
<br />40:48-2), not under the Municipal land Use
<br />law (MlUl) (N.J.S.A. 40:550-1 to -163), which
<br />was the basis of its earlier tree ordinance,
<br />declared invalid in 2001. In April 2004, the
<br />New Jersey Shore Builders Assodation (NJSBA)
<br />challenged the new ordinance, arguing that the
<br />ordinance is governed by the MlUL; that re-
<br />planting a tree off-site from where the original
<br />tree is removed fails to remediate the effects of
<br />tree removal; and that the replacement fe~ is
<br />an unauthorized tax.
<br />Expert planning witnesses testified on op-
<br />posite sides during a two-day trial. One stated
<br />the tree removal ordinance was "outside ofwhat
<br />is typically considered land-use controls" and
<br />is "inconsistent, overly vague, and imprecise."
<br />He also believed the ordinance unfairly distin-
<br />guished between residential and commercial
<br />lots.
<br />The other expert witness was the drafter
<br />ofthe ordinance, and he said he relied on the
<br />state's "no net loss" policy (N.J.5.A. 13:1l-
<br />14.2) as a model. The state requires that trees
<br />removed from state property be replenished
<br />on state, county, or municipal property via a
<br />hierarchy of options. Tree replacement doesn:t
<br />have to occur on the same property from which
<br />it is removed, he noted, because "biomass
<br />and. . . the beneficial effects ofthe tree [are]
<br />not related to the location from which a tree
<br />was taken as much as [they are] related to the
<br />entire Township that it's going to be located in.
<br />. . . [l1he replacement on the same site would
<br />be more 'ofan aesthetic value rather than an
<br />environmental benefit."
<br />The township lost~at least at the trial
<br />stage and in the court of appeals, which de-
<br />clared the ordinance was not a valid exercise
<br />of police power: The township had not met
<br />its burden of explaining how paying a fee or
<br />replanting trees on publicland would amelio-
<br />. rate the negative effects of removing trees on
<br />
<br />private property. On appeal, the Supreme Court
<br />of New Jersey reversed.
<br />The tree removal ordinance touches on
<br />the use of land, but it is notazoningan9 plan-
<br />ning initiative that implicates the MlUl; rather
<br />it is a "generic environmental regulation" that
<br />the court concluded was properly enacted
<br />based on the police power.
<br />The lower courts construed the goals
<br />ofthe ordinance too narrowly, the court de-
<br />cided, because it was designed to also "serve
<br />. general environmental goals, including the
<br />maintenance of the biomass of the municipal-
<br />ity with its concomitant ecological benefits of
<br />habitat,tree canopy, and oxyg:n production."
<br />The correct test for reviewing an ordinance
<br />adopted pursuant to the police power is the
<br />"rational basis test," which begins with an
<br />understanding thatthe ordinance is presumed
<br />valid. The lower courts incorrectly put the
<br />burden on the township, when it was. the chal-
<br />lenger's burden to overcome that 'presumption
<br />of validity.
<br />The court dismissed NjSBA's argument
<br />thatlarge trees cannot be replaced by smaller
<br />trees and shrubs to accomplish the same
<br />biomass goals stated in the ordinance. "The
<br />ordinance need not be perfect in order to
<br />pass muster," the court said, and "with time
<br />and proper care, many of the smaller trees will
<br />eventually serve to replace the lost canopy. .
<br />. . [R]eplanting on public property plainly con-
<br />tributes to oxygen production, habitat, and
<br />the biomass as a whoie . . . and is rational."
<br />At one point the court added, "At the risk
<br />of oversimplifying this case, it seems to
<br />us that NJSBA cannot see the forest for the
<br />trees."
<br />Although conceding that the $10 appli-
<br />cation fee and the $25 tree removal fee were
<br />legitimate, NJSBA argued that the replacement
<br />fees, ranging from $200 for smaller trees up to
<br />$800, were an invalid tax. The state's highest
<br />court disagreed, stating that "so long as the
<br />replacement fees do not exceed the municipal-
<br />ity's costs for administration and replacement,
<br />they are legitimate elements of the regulatory
<br />scheme."
<br />
<br />TEXAS CITIES CAN PRESERVE TREES IN THE
<br />EXTRATERRITORIAL JURISDICTION
<br />By Lara A. Lucero, AICP
<br />
<br />On May 27, the Texas Court of Appeals declared
<br />that the City of San Antonio's Tree Preservation
<br />Ordinance and Streetscape Tree Planting
<br />
<br />ZONINGPRACTICE 7.09
<br />AMERICAN PLANNING ASSOCIATION Ipage 6
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