Agenda - Planning Commission - 09/03/2009

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(~ Zoning Bulletin July 10, 20091 Volume 31 No. 13 be made to ~n escrow: fund for trees. That fund could be used to fund the planting of trees on public property. The New Jersey Shore Builders Association ("NJSBA") filed an ac- tion challenging the validity of the Ordinance. Among other things, it ar- gued that the Ordinance violated New Jersey's Municipal Land Use Law ("MLUL") (N.].S.A. ~~ 40:55D-1 to -163). Under the MLUL, the New Jersey legislature governed how municipalities must carry out their police powers in regulating land development. NJSBA contended that, under the MLUL, the Ordinance was not a valid exercise of the township's police power. It argued this was because the replanting of trees on public prop- erty did not address the Ordinance's goal of remediating the effects of tree removal on the property from which the removal occurs. In other words, it maintained that the means of the Ordinance failed to achieve the pur- pose of the Ordinance. The trial judge agreed and ruled in favor of NJSBA. The township appealed. The Appellate Division affirmed. The township appealed. DECISION: Reversed. /'--"'- ( Notably, the Supreme Court of New Jersey first held that the Ordinance was not a zoning regulation. Rather, it found it was a .'generic environmen- tal regulation." This distinction was important because it determined the standard that should have been used in considering whether, or not the Or- dinance was valid. NJSBA had maintained that because the Ordinance reg- ulated the use of land, it arose out of and was governed by the MLUL. The trial court had agreed. However, the Supreme Court disagreed. It found that although the Ordinance touched on the use of land, it was "not a plan- ning and zoning initiative that necessarily implicate [ d] the MLUL." It not- ed that many types of ordinances touched on the use of land but were not within the planning and zoning concerns of the MLUL. Such ordinances included: health codes; building codes; environmental regulations; and laws regulating the operation of particular businesses. Here, the court found that the tree removal ordinance was an environmental regulation and thus was "not subject to the specific limits in the MLUL." Since the Ordinance was not subject to theMLUL, as an exercise of the township's police power, the court said it would be valid if: (1) it was not unreasonable, arbitrary or capricious; and (2) ~he means selected by the township (i.e., the tree removal fee) had a real and substantial rela- tion to the goal of the' Ordinance (i.e., its environmental goals of miti- gating the overall loss of trees). The court concluded that the Ordinance .) was a valid exercise of the township's police power because it found that the "tree replacement fee, the escrow fund, and the planting of trees ... on public property where replanting at the original location [wa]s not @ 2009 Thomson Reuters 3 45