New Jersey Tree Laws 101
For New Jersey homeowners and business owners, trees are much more than a source of shade: they’re also an investment in property value. Unfortunately, trees can also be a source of real conflict between neighbors, especially when branches overhang property lines or roots threaten to break through the foundation of a building. Understanding the state’s tree laws is essential for avoiding property damage and expensive legal disputes.
In New Jersey, tree and vegetation laws hinge on the location of a tree relative to a property line. New Jersey law gives both property owners and the general public the right to prune branches that hang over a property line into a neighbor’s yard. So long as the pruning is done properly, the offending landowner has no recourse by filing a trespass lawsuit on the grounds that the tree owner damaged or destroyed any part of his or her property.
Local ordinances may dictate the types of vegetation planted on a property, depending on its location. These ordinances are designed to address potential problems such as reduced visibility, loss of power during a storm , and dangerous tree limbs that might fall on a neighboring property. Property owners who plant grass and shrubbery and maintain them according to code will have fewer disputes with neighbors than those who disregard ordinances regulating tree height and type.
New Jersey property owners must become familiar with the State Forestry Service’s "Right Trees for a Rainy Climate" program. Some municipalities offer tax incentives for planting approved trees through this program, reducing costs for landowners who wish to eliminate unsightly or potentially dangerous trees. Cutting down a tree, even one located on the owner’s own property, may also be regulated by local ordinances, particularly where the tree in question is more than 10 inches in diameter.
New Jersey laws governing tree ownership and maintenance strongly favor trees that benefit property owners. This means property owners can legally cut down trees or trim branches when they threaten to damage their property or significantly reduce its value. While the property next door may have some protections, the right to defend one’s own property is generally well-protected in these cases.
Landowner Obligations
A homeowner or property owner in New Jersey is required to maintain trees that are located on their property. Also, in New Jersey, trees are frequently referred to as "plantings" as codified in the New Jersey Municipal Land Use Law ("MLUL"). Trees cannot be destroyed or removed without a valid permit and the consent of neighbors where applicable.
A property owner, whether he or she is a homeowner, a commercial property owner, or an HOA/condo association, has the duty and obligation to regularly inspect trees that are located on their property, especially in those areas near driveways, walkways, roads, waterways or other areas regularly occupied by pedestrians. Failure to do so puts them at risk of legal exposure for damage caused by the trees, including any resulting personal injury, property damage or wrongful death actions. While damages resulting from a tree falling that is believed to be natural may be treated as an act of God, a property owner may be held liable if it can be shown that the property owner failed to maintain the tree properly and that the failure to act was willful or negligent.
Public Road and Land Tree Laws
Appertaining to public land and the planting, caring for, trimming, and removal of trees and shrubby vegetation are New Jersey State Statues, New Jersey Administrative Code, and municipal ordinances. Although New Jersey State Statues as well as statewide administrative code often address the regulation of trees on public property, municipalities have the right to enact their own ordinances. As such, all local tree ordinances should be consulted as they may be more stringent than similar state regulations. All of these rules and regulations are designed to maintain and preserve the quality of New Jersey public land for the use and enjoyment of the public.
New Jersey State Statutes confer upon municipalities the right to regulate the planting and conservation of trees on public lands. It is understood that trees to some extent contribute to the beauty of the community and therefore should be maintained. New Jersey state law provides for the creation of Shade Tree Commissions in municipalities to advise governing bodies on matters concerning the planting, preserving, and protecting of trees on municipal property. A Shade Tree Commission also acts to create ordinances that ensure standards for the care of and protection for publicly owned trees are adhered to.
New Jersey State Statutes define a public tree as "a tree growing upon a street or highway, or on any other land that is owned by, or leased to, or under the care and control of a municipality or other public agency." With this said, it is the responsibility of a governing body, such as a municipality, to care for street trees and planting grounds on street rights-of-way. Street rights-of-way are defined as land that is reserved for the use of the public for transportation. A street tree is defined as a tree that grows in such an area, such as along a sidewalk or planting strip. New Jersey’s Municipal Tree and Forest Act provides for the care and control of street trees and trees growing on municipal open spaces.
New Jersey Administrative Code Title 8 Subchapter 33A pertains to the control of tree and shrub vegetation encumbering power lines that are on public land. Similar to the Municipal Tree and Forest Act previously discussed, the NJ Division of Rate Counsel is required to prescribe minimum clearances for wires, structures, and conductors. Each utility must cut or trim any interfering vegetation in a manner that preserves the health of said vegetation.
Most municipalities have tree ordinances that address the planting, maintenance and removal of trees on public property. Examples of local ordinances can be found in Princeton and Montclair.
Disputes With Neighbors Over Trees
When it comes to trees on New Jersey property, the common law standards above are not used as often in neighbor disputes as instead are more direct statutes in the New Jersey code. The first is the N.J.S.A. 2A:17-95, known as the "Massachusetts Tree Act", which gives a neighbor the right to cut a tree down up to the property line if any "part of a tree leaning upon or projecting over" their property. The statute is silent as to what one can do with the part of the tree that is cut. In the case of Weller v. Masterson and Williams, the Appellate Division considered a situation where a tree was cut, not at the property line but instead cut back three feet into the lot having the tree. The trial court concluded that this was appropriate under the statute. The Appellate Division disagreed, however, and modified the decision to reflect that the tree should be cut where it crossed over the property line, so as to not injure the tree. The statute, however, may not apply when the tree has "become dangerous or is likely to become dangerous." Since a part of a tree can’t just exist and become dangerous without fault, the facts of the case are very important. If something can be said to remain completely within the bounds of a property, it is less likely that the statute applies. In Codrington v. McNlochlin, fencing and plane trees existed along the property line when the defendant decided to remove the trees. When the trees were removed, however, it was discovered that the trees were one year younger than had been believed. Therefore, the defendant was found to have cut them too early. The court also held that the fence was not truly on the property line but instead within the property of the plaintiff cutoff, so the defendant had the right to cut down the trees.
It is interesting to note here that the Supreme Court has held that whether tree roots cause damage to a house is a question of fact and not appropriate for summary judgment.
Permits and Penalties
When it comes to tree trimming or removal, New Jersey does have some specific requirements. However, as noted above, those requirements are fairly limited. The most immediate concern is preventing the unauthorized cutting or removal of trees, as addressed in Section 2:25-6 and Section 2:25-9. As you would imagine, these sections of the New Jersey Timber Trespass Act state that any person or business or government authority that wishes to remove a tree on property they do not own or lease must obtain consent from the owner of the property (not the forest).
In the event a tree will be cut or removed without obtaining the requisite permission , and the tree is determined to be "timber trespass," then the party will be subject to a civil penalty representing three times the value of the tree, as well as a potential fine of $300.
Under N.J.S. 12:6-56, a permit is required if an individual or entity wishes to cut firewood within the boundary of a state forest. Violation of the permit requirement under Section 12:6-56 can subject a person to a fine of $100-$500.
Protected Trees and Preservation
As defined by the New Jersey Landscape and Tree Law, "Tree" means any self-supporting woody plant usually having one main stem or trunk and many branches with a diameter at least one inch or more measured at breast height, and which grows to an average height of at least fifteen feet or more.
Since its enactment, the New Jersey Landscape and Tree Law has regulated the introduction and sale of non-native vegetation in the State to control exotic and invasive species, but it does not expressly identify protected tree species.
The Landscape and Tree Law was passed as a means of controlling deforestation and to protect trees from diseases such as ash borer disease, brown tree snake, Dutch elm disease, eastern hemlock woolly Adelgid, gypsy moth, hosta virus X, chestnut blight, pine beetle, redbay ambrosia beetle, speckled, claybacked and dyed lady beetles (often called ladybird beetles). The Law was passed in 10 but only has a handful of specific protections.
Under the Law, Tree "means any self-supporting woody plant usually having one main stem or trunk and many branches with a diameter at least one inch or more measured at breast height, and which grows to an average height of at least fifteen feet or more."
More specifically, the New Jersey Department of Environmental Protection ("NJDEP") protects trees on state-owned property by prohibiting the cutting down or removal of any tree without a permit.
The Green Acres program, established by N.J.S.A. 13:8A-1 et seq., directs the NJDEP to protect and maintain 625,000 acres of state-owned and locally owned parkland and open space. 291 N.J.R. 2398(a)(1) (June 15, 2007). Those NJDEP Green Acres lands include forested areas such like the one known as Saw Mill Pond (Landfill 8) and the automotive impound lot behind the cell tower at the Kearny Meadowlands Athletic Complex. NJDEP protection of trees within Green Acres is implemented through the issuance of permits.
Similarly, the New Jersey Department of Transportation ("NJDOT") regulates trees on ownership property by establishing a general right-of-way width for all state roads and highways to protect NJDOT trees from distribution during "riparian" activities. The RPA is measured 50 to 100 feet from the centerline of a right-of-way depending on the type of road: 50 feet for a rural collector, 75 for a major collector and 100 for an arterial. Significantly, the RPA is not limited to trees only and includes all vegetation within the designated area.
The NJDEP Tree Law also prohibits the purchase of certain trees or seedlings, including but not limited to ash borer insect and associated trees or seedlings infected by hemlock wooly Adelgid or the brown tree snake.
In addition, the NJDEP has adopted certain trees and shrubs listed in N.J.A.C. 7:1C-6.3(b)1 through 7 as threatened or endangered, thereby the NJDEP protects such listed trees and shrubs by prohibiting the removal of threatened or endangered trees or shrubs unless permission is granted pursuant to the Law. See N.J.A.C. 7:1C-5.4(a).
Recent Developments and Issues with Tree Laws
Recent changes to tree laws in New Jersey, along with emerging issues such as nuisance trees, are raising new questions for the industry. While many communities have been ahead of the curve in managing their tree resources, others are still working to develop comprehensive tree management plans.
Recently-enacted laws are balancing economic interests of landowners with environmental concerns, following the trend of regulating both in many fields. The lot clearing ordinance, which requires a landowner to mitigate for trees removed during construction, has had a long and complicated history. First passed in the 1970s in response to environmental concerns and spearheaded by the Department of Community Affairs, the law is now administered through the Department of Environmental Protection (DEP) when a developer or landowner seeks approval from a municipal agency for a development application. MET Grant #2013-NJ-TR76, "The State’s Stormwater Management Rules," implemented on March 2, 2010 and adopted under the Clean Water Act, also effectively stopped the widespread practice of clear-cutting on larger tracts of land.
To promote single family housing, the Residential Site Improvement Standards, N.J.A.C. 5:21-1.13(t), adopted in 1992, were amended on July 2, 2012, effectively allowing the clear-cutting of up to 20% of the trees on the property without prior tree protection measures. Many communities responded by passing ordinances that often mandate the replacement of these trees at an on-site nursery or require a fee to be paid into an account maintained by the municipality.
Other issues, such as nuisance trees that encroach on or over neighboring properties, are coming to the forefront, as landowners continue to confront conflicts not addressed by state or local legislation. This is prompting some municipalities to implement nuisance tree ordinances that, among other things, allow neighboring landowners to request trimming or removal of invasive or diseased trees on neighboring lots. Other ordinances regulate the planting of certain tree species that can negatively affect neighboring properties. There is no statewide ordinance regulating nuisance trees or infringement on adjacent property rights. Many of these ordinances are relatively new and did not exist just a few years ago.
Additionally, state and federal environmental regulators are urging communities to develop plans to protect and manage their tree resources. They note that despite these laws, enormous challenges remain in preventing the loss of trees that has occurred over the past three decades. Emerging issues, including the Asian Longhorn Beetle, the Emerald Ash Borer, and Ash Borer, threaten existing tree stock in a number of New Jersey municipalities. The Department of Environmental Protection – Division of Parks and Forestry’s Emerald Ash Borer Management Plan suggests that ash trees will become rare in New Jersey by 2050 should the insect infestation remain unchecked. Other environmental and infrastructural pressures are also pushing local governments to develop comprehensive master tree management plans. This creates additional responsibilities for tree professionals and increases the need for trees to meet regulatory guidelines, while creating potential legal liabilities for landowners who fail to do so.
How to Seek Legal Counsel
If you are seeking legal advice, here is a list of a few resources (not an endorsement of any of these services or companies) to help you navigate through tree law issues: For attorneys, the National Association of Land Surveyors has a "find an attorney" section of their website for New Jersey. The New Jersey State Bar Association also has a comprehensive list of their member attorneys by county . For another helpful listing which includes additional information, see this site. There are also a few commercial dispute resolution forums which you can get information about here. One last, but important, tip is to look in the yellow pages for "Arbitrators" or "Mediators" under the heading "Dispute Resolution" to find private, neutral dispute resolution professionals in your area.