Hearings before land use boards often involve fact witnesses and expert witnesses who provide the factual and legal basis upon which a board renders its decision. Expert testimony in the land use context is most often presented by professionals in the fields of engineering, architecture, and professional planning. Neither the Municipal Land Use Law (“MLUL”) nor the state regulations governing the practice of those disciplines specifically require a New Jersey issued license in order to provide expert testimony before a land use board or municipal agency. Rather, the determination of whether a proposed witness is an expert in a field or subject matter is within the discretion of the board based upon the education, experience and background of the witness. The term “expert witness” is not defined in the MLUL, and the Rules of Evidence are applicable but not mandatory in land use proceedings. With so little legal guidance on this issue, boards are sometimes faced with weighing the acceptance of, and reliance on testimony of an unlicensed expert witness, or an expert witness licensed in another state in light of an arguably increased risk of being overturned on appeal.
Generally, what separates a qualified expert witness from a fact witness is the ability to answer hypothetical questions based on the power to draw inferences from
the facts which a trier of fact would not be able to draw. This distinction becomes especially important in the land use context where board members often question experts in the form of hypotheticals, inquiring as to whether alternative configurations of the site plan or building layout could function on the site. Many land use board decisions rely heavily on the testimony of expert witnesses, whether it be an applicant’s expert or a board’s professionals. So how can a board prudently determine whether a proposed expert witness is qualified to provide expert testimony?
There is statutory guidance found for professional engineers. The Statute provides that an individual may not practice in the field of engineering without a New Jersey State issued engineering license. Practice in the field of engineering is defined broadly to include services in connection with utilities, structures, buildings, machines, equipment… etc., insofar as they involve safeguarding life, health or property. It would seem that there may in fact be several topics on which a New Jersey license could (and probably should) be required for purposes of providing expert engineering testimony. This makes sense, particularly in light of state-specific building codes and other regulations affecting the life, health and safety of residents which are applicable to the design and layout of a structure on a site.
By way of comparison, the private practice of professional planning does not require a New Jersey issued license. Note, however, that professional planners are required to have a New Jersey license in order to perform services in the development of master plans and other professional planning services intended to guide municipal policy. In the context of expert planning testimony, however, it would seem that while knowledge and understanding of the state’s planning goals are necessary for credibility purposes, the need for a state-specific license is less significant.
It should be noted that it is the typical practice, and certainly it is the best practice, for an applicant’s attorney to present expert witnesses who are licensed in the State of New Jersey in their particular field of expertise. Ultimately, however, unless this issue is addressed in the legislature or in the judiciary, boards must rely on their own evaluations of witness credibility as well as the advice of the professionals in determining whether to permit unlicensed or outside state-licensed professionals from testifying as experts in a land use proceeding.