BY JANE MEGGITT
Staff Writer
UPPER FREEHOLD — The Planning Board has found problems with the Township Committee’s proposed tree ordinances.
During its April 14 meeting, board members unanimously voted to send its review of the proposed tree ordinances to the committee.
The board and its attorney, Frank Armenante, looked at two ordinances regarding the removal and preservation of trees on township property. The first ordinance would regulate trees in minor and major subdivisions and site plans, while the second ordinance would regulate trees on private property not slated for development.
Armenante told the board he was not personally for or against either ordinance, but that he did have issues with the ordinances from a legal point of view.
He called having two separate ordinances to distinguish between developers and nondevelopers “a questionable distinction” in terms of the law. Besides that, he said the proposed ordinances call for penalties above what the state would allow.
State statutes prescribe limits on a municipality’s authority to impose penalties. The maximum fine amounts to $1,250 per violation, according to Armenante.
The first ordinance, Armenante said, would exceed the maximum fine, as it calls for an off-site contribution of replacement trees of $1,000 per tree with a caliper of 8-12 inches; $1,500 per tree with a 13- to 24-inch caliper; and $2,000 per tree measuring greater than 25 inches.
Armenante said the ordinances should also better clarify why clear-cutting an area of a vast majority of live trees is an illegal activity.
According to his report, “A prosecutor and a court would be left to decide whether, for example, six trees of 10 trees on a lot is the vast majority‚ or whether 20 out of 30 trees is the vast majority.”
Armenante also expressed issue with allowing some homeowners to get exemptions from needing a permit to remove trees.
He said that as written, the ordinance regarding private property would only require a homeowner to prove his or her exemption after receiving a ticket.
Because under the provisions of the ordinances, homeowners would have the ability to cut down trees for “usable yard space,” Armenante said officials should better define “usable yard space,” as the phrase could fall subject to a wide range of interpretations.
Armenante’s report concluded that these types of ordinances were difficult to draft. He said a constitutional and valid ordinance would only come as the result of review by various professionals and a number of drafts before adoption.
Mayor Sal Diecidue asked Armenante if the first ordinance could stand alone, without it affecting homeowners. Armenante said he did not know, and that a court may have to decide about an equal protection argument. Armenante said he would rather have the two ordinances adopted at the same time, whether as a single ordinance or as two.
“It doesn’t seem right to try to preserve trees on one side and not on the other,” Armenante said, referring to the distinction the ordinances create between developers and homeowners.
Armenante said the ordinances could create a situation of forcing a duty on a developer, yet allowing a homeowner with 500 acres to cut down all of his or her trees.
Board Chairman Richard Stern said, “Trees are a renewable resource. They’re planted every day.”
Board member Barry Wright, calling himself “a home rule-type person,” said a taxpayer has a right to live on his or her property without certain restrictions.
“Don’t tell me I can’t cut trees down in my yard,” Wright said. “Don’t get in front of my chain saw.”
Board member Joe Toscano said, “This is way too much ordinance. A deforestation ordinance might be in order for lots that have not been built on, but this is downsizing.”
Board member William Search, who noted that the township was rural and not built out, said, “No way will a landowner sit still for an ordinance that will compare to a developer’s ordinance. It’s not going to fly.”
Former Mayor Robert Abrams, who was in the audience, said only one ordinance was necessary.
Abrams said that over the years, few individual homeowners devastated their own trees. He said the ordinance would create a burden for homeowners who would have to obtain a permit and pay a fee for each tree removal.
Deputy Mayor William Miscoski, also in the audience, said, “All we need is a major [or] minor [subdivision] clear-cutting ordinance. That’s it.”
Board member Richard Bullock said that was the type of ordinance neighboring Plumsted Township has.
A public hearing on this matter will take place at the May 5 Township Committee meeting.