ASSEMBLY, No. 913

STATE OF NEW JERSEY

Introduced Pending Technical Review by Legislative Counsel

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

By Assemblyman ROCCO

An Act establishing a New Jersey Community Forestry Program to assist local governments, amending R.S.40:64-14 and P.L.1958, c.41, and supplementing Title 13 of the Revised Statutes and Title 59 of the New Jersey Statutes.

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. (New section) This act shall be known and may be cited as the "New Jersey Community Forestry Assistance Act."

    2. (New section) The Legislature finds and declares that trees and forests are a necessary and important part of community and urban environments, and are critical to the environmental, social and economic welfare of the State; that the ability of all county and municipal governments to care for and manage their shade trees could be enhanced through technical assistance from a State community forestry program; that local governments have experienced recurring and damaging exposure to litigation due to the drastic decline and poor condition of the State's community tree resource; that properly planned and implemented local community forestry programs can provide the necessary basis for local governments to reduce or eliminate liability associated with local tree care programs and shade tree commissions; and that the viability of county and municipal shade tree commissions is essential to the preservation and enhancement of the State's community tree resource.

    The Legislature therefore concludes that it is appropriate for the State to encourage, promote and assist in the establishment, retention and enhancement of community forestry programs by local governments.

    3. (New section) As used in this act:

    "Commissioner" means the Commissioner of the Department of Environmental Protection;

    "Community forestry" means the planting, protection, care and management of trees and other related natural resources within a municipality or county;

    "Department" means the Department of Environmental Protection;

    "Local government" means a municipality, county or other political subdivision of the State, or any agency thereof;

    "Shade tree commission" means a municipal body created pursuant to R.S.40:64-1 et seq. or a county body created pursuant to R.S.40:37-1 et seq.;

    "State Forester" means the State Forester designated pursuant to section 17 of P.L.1983, c.324 (C.13:1L-17).

    4. (New section) There is established in the Division of Parks and Forestry in the Department of Environmental Protection, under the supervision of the State Forester, the "New Jersey Community Forestry Program," the purposes of which shall be to:

    a. Assist local governments and shade tree commissions in establishing and maintaining community forestry programs and in encouraging persons to engage in appropriate and approved practices with respect to tree management and care;

    b. Advise local governments and shade tree commissions in the development and coordination of policies, programs and activities for the promotion of community forestry;

    c. Provide grants to local governments and shade tree commissions applying for assistance in the development and implementation of a comprehensive community forestry plan approved pursuant to section 7 of P.L. , c. (C. )(now before the Legislature as this bill), to the extent monies are appropriated or otherwise made available therefor;

    d. Educate citizens on the importance of trees and forests and their role in the maintenance of a clean and healthy environment;

    e. Provide technical assistance, planning and analysis for projects related to community forestry;

    f. Provide training assistance to local governments and shade tree commissions regarding community forestry issues such as tree diseases, insect programs and tree planting and maintenance; and

    g. Provide volunteer opportunities for the State's citizens and organizations interested in community forestry activities.

    5. (New section) a. There is established in the department a State Forester's Community Forestry Council, which shall consist of 20 members, appointed by the State Forester, all of whom shall be citizens with expertise or interest in trees, forestry, or tree or forest management, maintenance or care. Each of the members appointed shall serve for a term of three years and until a successor is appointed and qualified, except that of the members first appointed, seven shall serve terms of one year and seven shall serve terms of two years. All vacancies, except those created through the expiration of term, shall be filled for the unexpired term only, and in the same manner as the original appointment. Each member shall be eligible for reappointment, but may be removed by the commissioner or the State Forester for cause.

    b. A majority of the membership of the council shall constitute a quorum for the transaction of council business. Action may be taken and motions and resolutions adopted by the council at any meeting thereof by the affirmative vote of a majority of the full membership of the council.

    c. Members of the council shall serve without compensation, but may be reimbursed for expenses necessarily incurred in the discharge of their official duties.

    d. The State Forester shall appoint a chairperson and vice-chairperson and the council may elect such other officers as may be necessary. The council may appoint such staff or hire such experts as it may require within the limits of appropriations made for these purposes.

    e. The council may call to its assistance such employees as are necessary and made available to it from any agency or department of the State or its political subdivisions.

    f. The council may adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) and in consultation with the department, any rules and regulations necessary to carry out its responsibilities pursuant to this act.

    g. The council shall advise the State Forester, the Division of Parks and Forestry and the department on issues concerning community forestry and assist with such other functions as may be authorized pursuant to P.L. , c. (C. )(now before the Legislature as this bill) or any other law.

    6. (New section) The State Forester, with the advice and assistance of the council, shall establish minimum standards, and provide a training skills and accreditation program, for representatives of local governments and shade tree commissions, the content of which shall be the appropriate and approved methods for the planting, protection, care and management of trees and other related natural resources under their control.

    7. (New section) a. The State Forester, with the advice and assistance of the council, shall develop and make available to local governments and shade tree commissions a list of guideline elements found within a comprehensive community forestry plan. These guidelines shall establish but not limit the basic framework of an approved plan. The State Forester, with the advice and assistance of the council, shall develop and make available to local governments and shade tree commissions a procedure for submitting for approval a comprehensive community forestry plan.

    b. A local government may develop and submit to the State Forester for approval a comprehensive community forestry plan according to procedures established by the department.

    c. The State Forester shall, after review and comment by the council, approve a comprehensive community forestry plan if all required parts of the plan adequately address the needs of the community and the tree resource.

    8. (New section) The commissioner, with advice from the State Forester, shall prepare an annual report on the status of the New Jersey Community Forestry Program established pursuant to P.L. , c. (C. )(now before the Legislature as this bill), which shall also include any recommendations for legislative or administrative action to improve implementation of this act, and transmit that report to the Governor, the President of the Senate, the Speaker of the General Assembly, and the chairpersons of the Senate Natural Resources, Trade and Economic Development Committee, the Senate Environment Committee, the Senate Budget and Appropriations Committee, the Assembly Environment and Energy Committee, and the Assembly Appropriations Committee, or the successors of those committees as designated respectively by the President of the Senate and the Speaker of the General Assembly.

    9. (New section) The department shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), such rules and regulations as may be necessary to implement this act, including establishment of:

    a. Guidelines for development of a comprehensive community forestry plan;

    b. Criteria for proper selection, planting and care of trees;

    c. Procedures to accept and evaluate submitted comprehensive community forestry plans;

    d. Procedures for the review and approval of training skills and accreditation programs in tree care and management for local officials;

    e. Guidelines for the provision of technical assistance under the program to local governments and shade tree commissions in the formation of comprehensive community forestry plans; and

    f. Criteria for ranking grant applications received from local governments and shade tree commissions applying for assistance in the development and implementation of comprehensive community forestry plans.

    10. R.S.40:64-14 is amended to read as follows:

    40:64-14. No liability for death or injury. Nothing in this chapter contained shall be construed to make any shade tree commission or any member thereof, or any municipality or governing body member or employee thereof creating a shade tree commission, responsible for the death or injury of any person, or for an injury to any property or highway tree or shrub. Liability for any such death or injury shall be governed by the provisions of section 12 of P.L. , c. (C. )(now before the Legislature as this bill) and any other relevant provisions of the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq.

(cf. P.L.1958, c.42, s.11)

    11. Section 7 of P.L.1958, c.41 (C.40:37-10.2) is amended to read as follows:

    7. Nothing in this article contained shall be construed to make any shade tree commission or a member thereof, or any county or governing body member or employee thereof creating a shade tree commission, responsible for the death or injury of any person, or for an injury to any property or highway tree or shrub. Liability for any such death or injury shall be governed by the provisions of section 12 of P.L. , c. (C. )(now before the Legislature as this bill) and any other relevant provisions of the "New Jersey Tort Claims Act," N.J.S.59:1-1 et seq.

(cf. P.L.1958, c.41, s.7)

    12. (New section) a. Neither a public entity nor a public employee is liable for an injury caused by a tree or shrub, or any part thereof, if:

    (1) the tree or shrub, or pertinent part thereof, is on public property or on a public easement or right-of-way, or the tree or shrub, regardless of its location, is regulated, planted, cared for, controlled, or maintained by the public entity; and

    (2) the public entity, or a public entity created by that public entity, has participated in and successfully completed a training skills and accreditation program established pursuant to section 6 of P.L. , c.   (C. )(now before the Legislature as this bill) and has a comprehensive community forestry plan approved pursuant to section 7 of P.L. , c. (C. )(now before the Legislature as this bill).

    b. The existence of a municipal shade tree commission established pursuant to R.S.40:64-1 et seq. or a county shade tree commission established pursuant to R.S.40:37-1 et seq., or the fact that a municipality or county has otherwise provided for the regulation, planting, care, control, or maintenance of trees or shrubs within its jurisdiction, shall not be cause to immunize a private person from liability for an injury caused by a tree or shrub, or any part thereof, who otherwise would be liable for that injury.

    13. This act shall take effect immediately.

STATEMENT

    This bill would establish, in the Division of Parks and Forestry in the Department of Environmental Protection (DEP), a "New Jersey Community Forestry Program." The program would assist county and municipal governments in the planning and management of local tree care programs. Specifically, the program would be authorized to award grants to local governments applying for assistance in the development and implementation of a comprehensive community forestry plan, the guidelines of which would be established by the State Forester.

    The bill would also supplement the "New Jersey Tort Claims Act" (N.J.S.59:1-1 et seq.) to provide that a public entity with an approved comprehensive community forestry plan and which had successfully completed a training skills and accreditation program administered by the State Forester would be immune from liability due to tree-related injuries. A public employee whose conduct was outside the scope of his employment or which constituted a crime, actual fraud, actual malice, or willful misconduct would still be liable for damages under existing language in the "New Jersey Tort Claims Act" (N.J.S.59:3-14).

    Recent case law suggests that the existence of a shade tree commission may increase local government liability resulting from tree-related injuries. The recent increased fear of liability has caused many local governments to abolish their shade tree commissions and, in the process, decrease significantly their tree maintenance programs. This bill, if enacted, would attempt to address that problem.

Establishes "New Jersey Community Forestry Program" to assist local governments.