current issues in zoning
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Current Issues in ZoningTRANSCRIPT
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Current Issues in Zoning
By
Reginald Long
I. FUNDAMENTAL ZONING AND LAND USE ACTIONS
A. Historical Perspective
In New Jersey, the authority of the State to enact land use laws, including zoning,
is derived directly from Article III of the New Jersey Constitution, which grants the State
Legislature the power to regulate the uses of land within the State. Additionally, Article
IV §6¶2 of the New Jersey Constitution authorizes the State Legislature to delegate some
of this land use power to municipalities. These amendments to the New Jersey
Constitution were the result of the United States Supreme Court’s landmark decision in
Village of Euclid, Ohio, et al. v Ambler Realty Co., 272 US 365, 47S.Ct. 114 (1926)
holding that property owners do not have an unlimited right to use their land. This
established the doctrine of reasonable use, reasonable return. Specifically, the doctrine of
reasonable use, reasonable return is based on the premise that while property owners are
not necessarily entitled to maximum profits, they are protected against the deprivation of
all use and rights. Accordingly, the basic standards of zoning that were established in
Euclid still apply.
B. The Municipal Land Use of 1975
The Municipal Land Use Law, N.J.S.A. 40:55D, et seq. (“MLUL”) is the
statutory scheme that sets forth the basic framework associated with establishing and
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regulating land use in New Jersey. Specifically, the MLUL permits a municipality to
enact a Master Plan with a Land Use Element as defined under the statute. Upon the
adoption of the Master Plan with a Land Use Element, a municipality may enact a zoning
ordinance. Municipal zoning power remains to three (3) major constraints:
(1) Exercise may not conflict with federal and state constitutions:
(2) Authority may not be exercised in conflict with authority of power of county,
state and federal governments (including the super-planning areas such as
New Jersey Meadowlands, Pinelands and newly-created Highlands).
(3)
Authority must be exercised in strict conformance with the MLUL.
The MLUL provides for the following general purposes:
a. To encourage municipal action to guide the appropriate use or
development of all lands in this State, in a manner which will promote
the public health, safety, morals, and general welfare;
b. To secure safety from fire, flood, panic and other natural and man-
made disasters;
c. To provide adequate light, air and open space;
d. To ensure that the development of individual municipalities does not
conflict with the development and general welfare of neighboring
municipalities, the county and the State as a whole;
e. To promote the establishment of appropriate population densities and
concentrations that will contribute to the well-being of persons,
neighborhoods, communities and regions and preservation of the
environment;
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f. To encourage the appropriate and efficient expenditure of public funds
by the coordination of public development with land use policies;
g. To provide sufficient space in appropriate locations for a variety of
agricultural, residential, recreational, commercial and industrial uses
and open space, both public and private, according to their respective
environmental requirements in order to meet the needs of all New
Jersey citizens;
h. To encourage the location and design of transportation routes which
will promote the free flow of traffic while discouraging location of
such facilities and routes which result in congestion or blight;
i. To promote a desirable visual environment through creative
development techniques and good civic design and arrangement;
j. To promote the conservation of historic sites and districts, open space,
energy resources and valuable natural resources in the State and to
prevent urban sprawl and degradation of the environment through
improper use of land;
k. To encourage planned unit developments which incorporate the best
features of design and relate the type, design and layout of residential,
commercial, industrial and recreational development to the particular
site;
l. To encourage senior citizen community housing construction;
m. To encourage coordination of the various public and private
procedures and activities shaping land development with a view of
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lessening the cost of such development and to the more efficient use of
land;
n. To promote utilization of renewable energy resources; and
o.
To promote the maximum practicable recovery and recycling of
recyclable materials from municipal solid waste through the use of
planning practices designed to incorporate the State Recycling Plan
goals and to complement municipal recycling programs.
C. Implementing the MLUL on the Municipal Level
The MLUL establishes the roles of the three municipal agencies involved in the
planning process:
Governing Body – The governing body of a municipality is guided by the master
plan prepared by planning board and adopts zoning ordinances. Although the governing
body may delegate its authority to the land use boards so they can properly administer the
land use process within the municipality, it should be noted that such delegation must
provide “precise” authority. Ordinances enacted by the governing body must be very
detailed since land use boards may only enforce or interpret what is expressly contained
within them – the boards have absolutely no authority to create their own standards. For
that reason, land use boards are limited to offering specific relief based on what is
provided to them by way of the municipal ordinance which has been adopted by the
governing body. Generally, if the:
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(1) Planning Board - this board is intended to address broader aspects involved
with administering land use process within a municipality. The planning
board is involved in including the formation of the municipal master plan, site
plans and subdivision applications. It can only grant variances in conjunction
with submission of site plans in order to prevent having to process one
application between the two sets of land use boards. Additionally, the
planning board is empowered under the MLUL to make plans, maps and to
provide the municipality’s governing body with recommendations associated
with proposed ordinances and proposed changes to ordinances involving land
use issues. Additionally, if an application involves a site plan or subdivision
with a conforming use, but perhaps requires several incidental “c” variances
(bulk/dimensional), only the Planning Board has jurisdiction to consider such
an application.
(2) Board of Adjustment – The board of adjustment which is commonly referred
to as the zoning board. This board reviews applications associated with
variances and exceptions to the zoning ordinance. This board also has the
overlapping power to review and approve site plan and subdivision
applications, when the applications require relief from a “d” (use) variance
since the Zoning Board is the only entity empowered to interpret the zoning
ordinance and hear appeals of building permit denials.
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With few exceptions, most zoning and planning activities are performed at the
municipal level. The municipal governing bodies (i.e., Mayor and Council) have the
power to adopt the ordinances and plans required to provide for local zoning.
Once a municipality establishes either a planning board or a zoning board pursuant the
MLUL, the boards are not considered municipal agencies or departments, but rather, the
boards are quasi-judicial entities that have independent statutory authority and are
considered a separate body politic (political unit). Although the Planning Board and
Zoning Board are both empowered to grant approvals involving site plans, subdivisions
and variances, their authority is limited both to the ordinances establishing the entity and
the powers contained in the MLUL. For example, Nigro v. Planning Bd. Of Borough of
Saddle River, 122 N. J. 270 (1991), is a case involving a challenge by an applicant
resulting from the denial of the Planning Board to grant approval for a preliminary
subdivision application. Specifically, the Superior Court Law Division reversed the
Planning Board’s denial as being arbitrary and capricious, and the Planning Board
appealed the reversal. The Appellate Division reversed the Law Division and reinstated
the Planning Board’s denial. However, the New Jersey Supreme Court ultimately held
that the mere fact that proposed subdivision plan included an access road that was not
shown on municipality’s official map should not have prevented the Planning Board from
approving the subdivision application. The Court reasoned that the Official Map, as
adopted by the municipal governing body, set forth the plan for future development. The
purpose of the Official Map is to put landowners on notice of future plans so as to
prevent economic waste. The applicant purchased farmland with the intent to subdivide it
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for a residential development, and although the Subdivision Application proposed roads
that were not displayed on the Official Map, it should be remembered that the official
map is not absolute and so long as the request does not reflect a material deviation from
the municipal planning document, the application should be approved.
Generally, in those cases where an applicant has met all the requirements
established by the municipal ordinance, and no deviation or variance is requested, the
applicant is entitled to an approval as of right. For example, the following is a case
involving the denial of a subdivision application by the planning board. In the case of
Pizzo Mantin Group v. Township of Randolph , 137 N.J. 216 (N.J. 1994), a developer
brought an action challenging Planning Board’s denial of preliminary major subdivision
application. The Law Division upheld the denial, but the Appellate Division reversed and
remanded. The Supreme Court held that the Planning Board was required to apply only
standards provided in municipal subdivision ordinance and not those otherwise reflected
in broad purposes of MLUL. The Court reasoned that although the MLUL controls, the
Planning Board shall grant preliminary approval if the subdivision plan complies with the
ordinance.
Generally, the courts do not favor the enforcement of a municipality which
exacts contributions from developers for off-tract improvements unrelated to the
developer’s application. For example, New Jersey Builders Ass’n v. Mayor and Tp.
Cmm., Benards, 108 N.J. 223 (1987) is a case where a building trade association brought
action challenging municipality’s off-tract improvement and contribution ordinance. The
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Law Division invalidated the ordinance, and the municipality appealed. On petition from
the municipality, the New Jersey Supreme Court held that the portion of ordinance
requiring new developers to pay a pro rata share of the municipality’s long-term, $20
million road improvement plan exceeded the municipality’s authority under the MLUL,
and was thus invalid. The Court reasoned that although the traffic study was
incorporated into the municipality’s Master Plan, the MLUL limits exactions only for
“reasonable and necessary” off-tract improvements. Accordingly, the money collected
from a developer must be limited to the municipality’s expense to accommodate the cost
of the development. In this case, the exaction was not tied into actual construction, and
there was no reasonable relationship between the money collected and the money spent.
Similarly, Nunziato v. Planning Bd. of Borough of Edgewater , 225N.J.Super. 124 (App.
Div. 1988) is a case where objectors to a neighboring development sued to challenge the
Planning Board’s site plan approval for the construction of high-rise condominium. The
developer offered to pay a certain amount per approved unit that the municipality could
then use to build affordable housing elsewhere. The court held that the approval was
improper since it was based on the exaction. The court reasoned that the problem
inherent with the deal reached between the developer and the Planning Board is that it
gave the appearance the developer was buying the approvals. Moreover, in Township of
Marlboro v. Planning Bd. Of Tp. Of Holmdel , 279 N.J. Super. 638 (App. Div. 1995).
Developers brought an action in order to enforce an approved development plan which
involved an exaction for off-tract development.. The court held that although the
contribution requirements were illegal, deletion of the offending requirements instead of
voiding the approvals in their entirety was the proper remedy.
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Generally, once an applicant has successfully obtained a variance, the variance is
deemed to run with the land. For example, in Beringer v. Board of Adjustment , 245. N.J.
Super. 401 (App. Div. 1991) a group of homeowners appealed from the judgment of the
Law Division which invalidated an exception or variance granted in 1939 to a
predecessor-in-title to use the property as a two-family house. The Appellate Division
held that the variance would continue to successors in interest. The court reasoned that
the illegal condition that premises would revert back to single-family house when
applicant sold the property would be excised.
II. CONSTITUTIONAL CONSIDERATIONS
The constitutionality of zoning per se did not have to be addressed in New Jersey
under its current constitution. Article 4, §6, par. 2 authorizes the state legislature to enact
legislation which permits the adoption of zoning ordinances by municipalities. From time
to time, since the adoption of the 1947 Constitution, the state legislature has enacted the
MLUL. Although the New Jersey Supreme Court was spared the chore of finding land
use ordinances constitutional, it has occasionally issued opinions which delineate
principles which affect constitutionality in New Jersey. Specifically, Riggs v. Long
Beach Township, 109 N.J. 601 (1988) is a landmark case involving the application of
constitutional principles in analyzing a municipal ordinance, holding:
• Municipalities only have such power to zone as is delegated by the legislature;
• Zoning Ordinances are insulated from attack by the presumption of validity;
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• The presumption can only be overcome by a showing that the ordinance is
arbitrary, capricious or unreasonable;
• A party challenging an ordinance bears the burden of overcoming the
presumption of validity;
• Courts should not question the wisdom of an ordinance; if debatable it should be
upheld; and
• Should an ordinance have both a valid and invalid purpose, courts should not
guess which may have motivated the governing body, and uphold the ordinance.
Generally, a claim involving procedural due process, involves a balancing test by the
court. That balancing weighs the nature of the loss to the individual against the need for
summary action by the government. Goldberg v. Kelly, 397 U.S. 254 (1970). The MLUL
sets forth procedures for all land use actions in minute detail. As a result, procedural due
process claims are usually litigated as violations of MLUL and are barred in federal
court. DeBlasio v. Zoning Board of Adjustment for the Township of West Amwell, 53 F.
3d592 (3rd Cir. 1995).
It should be noted that substantive due process claims, have become less successful.
However, DeBlassio is a case in which a board member participating in the decision of an
application had a financial interest which would benefit by a denial of the application.
Based upon its prior decision in Bello v. Walker, 840 F.32 1124 (3rd Cir. 1988), the court
concluded DeBlasio’s property interest was a “fundamental” property interest worthy of
substantive due process protection. The court went on to find that the court below
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improperly granted the defendants summary judgment as a jury might find that the
defendants acted based upon improper motives, subjecting the plaintiff to “arbitrary and
capricious government action.” Generally, claims involving a taking without just
compensation which leaves the land owner with a claim for inverse condemnation. See,
Grosso v. Board of Adjustment of Millburn Township, 137 N.J.L. 630 (Sup. Ct. 1948);
Morris County Land v. Parsippany-Troy Hills Township, 40 N.J. 539 (1963) (holding
that the property was zoned such that land had no practical use); and Pheasant Bridge
Corp. v. Township of Warren, 169 N.J. 282 at 310 (2001). See also, Lucas v. South
Carolina Costal Council, 505 U.S. 1003 (1992) (holding that taking must involve a denial
of “all economically beneficial or productive use” in order to qualify as inverse
condemnation); and Fox v. Township of West Milford, 357 N.J. Super. 123, 128
(App.Div.2003), cert. Denied 176 N.J. 279 (2003): (holding that denial of access
(vacating of streets) is only actionable if all access is denied (including an easement over
state land).
Under the constitutional doctrine of equal protection, it is required that government
must treat persons similarly situated equally. For example, Kozenik v. Montgomery
Township, 24 N.J. 154 (1957) is a case involving a challenge to an ordinance that
prohibited quarry activity within 400 feet of a dwelling at time of adoption. In Kozenick,
the Court held that distinction between owners of dwelling and owners of undeveloped
land could not be made. Similarly, in City of Cleburne v. Cleburne Living Center, 473
U.S. 432 (1985) the Court held that an ordinance which excluded group houses for the
mentally retarded from residential zones was invalid.
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Generally, the doctrine of equal protection does not prohibit a municipality from
making rational, noninvidious distinctions between classes of person. See, Dome Realty,
Inc. v. Patterson, 83 N.J. 212 (1980) (holding that owners of two family homes could be
exempted for habitability standards); United Property Owners v. Belmar, 343 N.J. Super.
1 (App. Div. 2001) (holding that the limitation of number of occupants of summer rental
dwellings was valid); Taxpayers Association of Weymouth Township v. Weymouth
Township, 71 N.J. 249 (1976): (holding that age-restricted, mobile home parks are valid).
III. JUDICIAL CHALLENGES TO REZONING DECISIONS
Generally, rezoning challenges result in those cases in which a municipality
adopts a zoning ordinance that changes the existing zoning (rezones) in a manner that is
adverse to either the use or development of the challenger’s property. Although a zoning
ordinance is presumed valid, the zoning ordinance must comply with the requirements
outlined by the New Jersey Supreme Court as outlined in Riggs v. Long Beach Township,
109 N.J. 601.
Advance a purpose of the Municipal Land Use Law. Specifically, in Riggs the New
Jersey Supreme Court held that “the ordinance must advance on the purposes of the
Municipal Land Use Law as set forth in J.J.S.S. 40:55D-2.” In striking down an
ordinance increasing the required lot size the Court reasoned that the sole purpose of the
ordinance was to enable the municipality to purchase property at a reduced price.
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Generally, a zoning ordinance that is not part of a comprehensive zoning plan and
benefits a particular property owner (commonly referred to as spot zoning) is improper
since the ordinance is not based upon a proper planning purpose. Taxpayers Ass’n of
Weymouth v. Weymouth Township , 71 N.J. 249. Similarly, a zoning ordinance that is
not part of a comprehensive zoning plan that targets a specific parcel for less favorable
treatment than that of neighboring ones (commonly referred to as inverse spot zoning) is
also vulnerable. Penn Central Transp. Co. v. City of New York, 438 U.S. 104; Petlin
Assocs. v. Township of Dover, N.J. 327.
Remain consistent with the Master Plan. - Additionally, in Riggs, the court held that
pursuant to N.J.S.A. 40:55D-62 the ordinance must be substantially consistent with the
master plan. In order to insure the ordinance’s consistency with the master plan, the
proposed ordinance must be reviewed by the planning board to identify any
inconsistencies between the ordinance and the master plan and make those
recommendations to the governing body that the planning board deems appropriate. If the
governing body of the municipality rejects the recommendations of the planning board,
the decision by the governing body to overrule the recommendations must be by a
majority vote of the full-authorized membership and must clearly set forth the reason for
the rejection.
Comport to constitutional requirements. Further, in Riggs, the court held that the
proposed zoning ordinance must comport to the constitutional constraints contained in
the municipality’s zoning power. For example, a municipality cannot target property in a
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manner that restrains all reasonable uses. The courts have regarded such action as a
confiscation of property through zoning which may result in a taking without just
compensation. A.M.G. Assocs. v. Township of Springfield , 65 N.J. 101 Similarly, in
Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 which is a
case involving a challenge to the designation of a redevelopment area by a municipality,
the Court held that “ A growing lack or total lack of utilization of areas caused by the
condition of title, diverse ownership of the real property therein or other conditions
resulting in stagnant or not fully productive condition of land potentially useful and
valuable for contributing to and serving the public health, safety and welfare.”
Meet the appropriate statutory and municipal procedural requirements. -
Moreover, in Riggs, the court held that the zoning ordinance must be adopted in
accordance with the appropriate statutory and municipal procedural requirements. The
statutory procedural requirements which set forth the manner in which an ordinance on
first reading the publication of the ordinance, at least seven days prior It should be noted
that if the proposed zoning ordinance involves property within 200 feet of an adjacent
municipality, pursuant to N.J.S.A. 40:55D-15a, notice by personal service or certified
mail at least 10 day prior to the hearing on the second reading is required to be given to
the county planning board and to the clerks of adjoining municipalities.
Additionally, as previously discussed, a proposed zoning ordinance must be
submitted to the planning board for its adoption. The planning board has 35 days to
submit its report to the governing body of the municipality which identifies any
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inconsistencies of the proposed zoning ordinance with the master plan, along with all
other matters the planning board deems appropriate.
Procedural Requirements of the Rezoning Challenge - As previously mentioned, a
zoning ordinance is presumed valid unless it can be established that the ordinance has
been adopted without meeting the requisite conditions contained in Riggs as outlined
above. Accordingly, rezoning challenges tend to be lengthy and expensive. The
adjudication process associated with challenging a rezoning involves establishing a
record of the rezoning challenge during the adoption phase of the ordinance, filing a
complaint in lieu of prerogative writ in the Law Division of Superior Court, pursuant to
New Jersey Court Rule R. 4:69, and trying the case.
Challenging the Rezoning Adoption of the Ordinance - As previously indicated, the
governing body of the municipality must hold a hearing at the second reading of the
ordinance. An objection to the proposed zoning should be presented at the hearing.
Additionally, if there is sufficient opposition to the proposed zoning ordinance from
property owners, there may be an opportunity to file a protest with the municipal clerk
under N.J. S.A. 40:55D-63 which raises normal majority vote to those present to a two-
thirds requirement of the full-authorized membership.
Filing the Complaint in Lieu of Prerogative Writ. The procedural requirements
associated with filing a complaint in lieu of prerogative writ are contained in New Jersey
Court Rule R. 4:69:
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Time Requirements – Specifically, R. 4:69-6 states, “No action in lieu of
prerogative writs shall be commenced later that 45 days after the accrual of the right to
the review, hearing or relief claimed.” Therefore, the action must be filed 45 days
following the date of the hearing held by the governing body of the municipality
presenting the second reading of the proposed zoning ordinance.
It should be noted that the 45-day rule is subject to exceptions pursuant to R.
4:69-6(c) permitting an expansion “where it is manifest the interest of justice so
requires.” In those cases where it is determined that strict application of the 45-day rule.
For example, Burnetti v. Borough of New Milford , 68 N.J. 576 provides an analysis of
the application of exceptions to the 45-day rule.”
These exceptions included cases involving (1) important and novel
constitutional questions, (2) informal or ex parte determination of legal questions
by administrative officials, and (3) important public (rather than private) interests
which require adjudication or clarification. Paragraph (c) of the Rule which
provides for enlargement of the limitations period, was added by amendment in
1957 and was intended to codify these decisional exceptions ”in the form of
generalized standard” …Consequently, in determining whether “interest of
justice” requires an enlargement of the time of these decisions for guidance.
[citations omitted]
When relying upon the exception to the 45-day rule, it is necessary to explain the
reason for the delay and to establish why a failure to relax the 45-day rule would be
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unfair and not in the interest of justice. Washington Tp. Zoning Bd. v. Planning Bd., 217
N.J. Super. 215. Notwithstanding the exception to the 45-day rule, as a practice it is
strongly suggested that the practitioner not rely upon the exceptions to the 45-day rule
when filing the complaint in lieu of prerogative writ.
Trying the Case – Generally, rezoning challenges will either involve facial attack
to the ordinance or an “as applied” challenge. Generally, a facial attack to a zoning
ordinance will be decided on the briefs; however, extrinsic evidence may be submitted in
order to provide the challenger assistance in overcoming the presumption of validity as
discussed above.
Generally, the “as applied” challenge will require hearings in addition to trial
briefs. As a result, the case must be established through the use of expert witness and
fact. Since there is a limited record, traditional trial discovery techniques such as
interrogatories and depositions should be considered and utilized when appropriate.
It should be noted that whether the rezoning challenge is a facial attack to the
ordinance or an “as applied” challenge, the court will impose a quasi-judicial standard of
review (which is favorable to the governing municipal body), require trial briefs, and
utilize pretrial orders, pursuant to Rule 4:25-1, as pretrial orders are mandatory actions. In
applying the quasi-legislative standard of review, the court does not apply a balancing
test examining the evidence, but rather will overturn the ordinance only if it determines
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that the ordinance is arbitrary and unreasonable unless the presumption of validity is
successfully rebutted.
Standing Requirements. Notwithstanding the narrow interpretation of the party-in-
interest rule utilized in adjudicating New Jersey civil cases which require plaintiffs to
demonstrate a sufficient stake in the outcome of the litigation and establish an adverse
position to the defendant, in zoning cases, standing is broadly interpreted. Specifically,
N.J.S.A. 40:55D-4 defines interested person as:
…any person, whether residing within or without the municipality,
whose right to use, acquire, or enjoy property is or may be affected
by any action taken under this act…
Generally, the court will liberally interpret standing requirements in order
to decide areas of public concern. For example, in Home Builders league of So. Jersey
Inc. v. Tp. of Berlin, 81 N.J. 127 the court permitted the public advocate and the Home
Builders League of South Jersey to challenge the zoning ordinance which required a
minimum floor area ration. Additionally, in Southern Burlington County NAACP v.
Mount laurel Township, 67 N.J. 151, the court extended standing to non-residents
seeking affordable housing. However, in those cases where the suit involving one
business competitor against another regarding a zoning matter, the courts will limit the
liberal application of interpreting standing. Paramus Muti-plex Corp.v. Hartz Mountain
Ind. Inc. , 236 N.J. Super. 104
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IV. JUDICIAL APPEALS OF ADMINISTRATIVE ZONING DECISIONS
Generally, judicial appeals of administrative zoning decisions involve using the
courts to appeal a decision rendered by either a zoning official or by the board of
adjustment. There are several levels to appeal administrative zoning decisions which
include the appeal of a zoning official’s decision at the zoning board of adjustment,
appeal of the zoning board of adjustment decision at the Superior Court, and appeal of the
Superior Court decision at the appellate level.
Zoning Board of Adjustment Appeals
An Applicant may appeal the decision of a zoning officer to the zoning board of
adjustment. The zoning board of adjustment is a municipal administrative agency which
functions as a quasi-judicial body. Specifically, pursuant to N.J.S.A. 40:55D-70 and
N.J.S.A. 40:55D-76 the zoning board has limited but exclusive jurisdiction with respect
to appeals from the decision of zoning officers, interpretations of the zoning ordinance
and requests for variances.
The board of adjustment has the capacity to determine whether an administrative
officer or zoning officer erred in making decision. Specifically, N.J.S.A. 40:55D-70a
enables the zoning board of adjustment to hear and decide appeals where it is alleged by
the applicant that there is an error in any order, requirement, decision or refusal made by
an administrative officer based on or made in the enforcement of the zoning ordinance.
Accordingly, if a zoning officer renders an unfavorable decision regarding an applicant’s
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variance permit application, the zoning board has the power to hear the matter, determine
whether the decision of the zoning officer was either correct or incorrect, and reverse or
affirm the decision accordingly.
Additionally, the zoning board of adjustment has the capacity to interpret the
zoning map and the zoning ordinance. Specifically, N.J.S.A. 40:55D-70b enables the
board of adjustment to provide interpretations of the zoning map or the zoning ordinance.
However, it should be noted that since issues with respect to the construction of a zoning
ordinance are considered questions of law, the board’s interpretations are not binding on
reviewing court.
Municipal Governing Body Appeals
In certain situations, an objector may appeal the decision of the zoning board of
adjustment to grant a use [“(d)”] variance. Specifically, N.J.S.A 40:55d-17(a) permits
the governing body of a municipality to hear an appeal of the board’s decision only if the
municipality has adopted an ordinance authorizing such appeals. Appeals to the
governing body must be made within 10 days of the publication of the board’s decision.
In those cases where the variance occurs by default because the board failed to act within
the statutory period, the notice of default must be published by the applicant in order to
start the ten day appeals process to the governing body.
In order to initiate an appeal to the municipal governing body, the appellant must
serve a notice of Appeal pursuant to N.J.S.A. 40:55D-17(a) which requires that the notice
contain the basis for the appeal, appellant’s name and address, and appellant’s attorney
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name and address (if any). The municipal governing body applies a de novo standard of
review in examining the record. Accordingly, the applicant has the burden of proof to
establish entitlement to variance relief. Additionally, pursuant to N.J.S.A 40:55D-10(h),
the municipal governing body must provide notice of the appeal within 10 days prior to
the meeting either by certified or personal mail to the appellant, zoning board of
adjustment and the applicant and applicant’s attorney. The parties are entitled to provide
oral and written arguments at the meeting and the municipal governing body has ninety-
five days from the date of publication of the zoning board of adjustment’s published
notice of its decision to decide the appeal. The municipal governing body must mail a
copy of its decision to the appellant (or appellant’s attorney) along with any interested
party that requested a copy.
Superior Court Appeals to Administrative Decisions
An applicant may appeal the decision made by the zoning board of adjustment to
the courts. The court action to appeal an administrative decision from a zoning board or
planning board is a complaint in lieu of prerogative writ. Pursuant to New Jersey Court
Rule 4:69 et seq., the applicant must file the complaint in lieu of prerogative writ in the
Law Division of the Superior Court.
Time Requirements- Specifically, R. 4:69-6 states “No action in lieu of
prerogative writs after the accrual of the right to the review, hearing or relief claimed.”
Therefore the action must be filed 45 days following the board’s publication of its
decision.
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It should be noted that the 45-day rule is subject to exceptions pursuant to R.
4:69-6(C) permitting the expansion “ where it is manifest interest of justice so requires.”
In those cases where it is determined that strict application of the 45-day rule is not in the
interest of justice, the courts have relaxed the 45-day rule. For example, Brunetti v.
Borough of New Milford, 68 NJ 576 provides an analysis of the application of exceptions
to the 45-day rule:
These exceptions included cases involving (1) important and novel constitutional
questions, (2) informal or ex parte determination of legal questions by administrative
officials, and (3) important public
(rather than private) interests which require
adjudication or clarification. Paragraph C of the rule which provides for an
enlargement of the limitations period, was added by amendment in 1957 and was
intended to codify the decisional exceptions “in the form of a generalized standard”
…Consequently, in determining whether the interest of justice requires an enlargement of
the time .[citations omitted]
When relying upon the exception to the 45-day rule it is necessary to explain the
reason for the delay and to establish why a failure to relax the 45-day rule would be
unfair and not in the interest of justice. Washington Township. Zoning Bd V. Planning
Bd. 217 N.J. Super. 215. Notwithstanding the exception to the 45-day rule, as a practice
tip it is strongly suggested that the practitioner not rely upon the exceptions to the 45-day
rule when filing the complaint in lieu of prerogative writ.
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Trying the Case- Generally, appeals to an administrative decision will be decided
from a review of the record and on the briefs. Generally, the trial court will not consider
additional evidence related to the application or hear additional testimony. Accordingly
it is crucial to establish a favorable and complete record before the local board.
Generally, those items that the trial court will consider as part of the record includes
documents submitted to the board, such as exhibits and professional reports in addition to
transcripts of the board hearing. Therefore, the use of expert witnesses for purposes of
both testimony at the local board hearing and report submissions to the local board is a
vital part of establishing a complete record for appellate purposes.
The court will apply a quasi-judicial standard of review. In applying the quasi-
judicial standard of review, the court reviews the record and legal questions to establish
whether the local board acted properly as a matter of law. Additionally, the court will
give the local board a greater degree of deference for the more complex factual setting
and provide less deference in reviewing legal issues.
Standing Requirements
Notwithstanding the narrow interpretation of the party-in-interest rule utilized in
adjudicating New Jersey civil cases which requires plaintiffs to demonstrate a sufficient
stake in the outcome of the litigation and establish an adverse position to the defendant,
in zoning cases, standing is broadly interpreted. Specifically, N.J.S.A. 40:55D-4 defines
interested persons as:
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…any person, whether residing within or without the municipality, whose
right to use, acquire, or enjoy property is or may be affected by any action taken under
this act…
Generally, the court will liberally interpret standing requirements in order to
decide areas of public concern. For example in Home builders league of Southern Jersey,
Inc. v. Township of Berlin, 81 N.J. 127 the court permitted the public advocate and the
Home Builders League of South Jersey to challenge a zoning ordinance which requires a
minimum floor area ratio. Additionally, in Southern Burlington County NAACP v. Mount
Laurel Township, 67 N.J. 151, the court extended standing to non-residents seeking
affordable housing. However, in those cases where the suit involves one business
competitor against another regarding a zoning matter, the courts will limit the liberal
application of interpretation standing. Paramus Multi-Plex Corp. v. Hartz Mountain Ind.
Inc., 236 N.J. Super. 104.
.