Zoning – Whose Job is it Anyway?

In New Jersey, there is a well-established principle in land use jurisprudence, that zoning should be done by ordinance, and not by variance. Nonetheless, every day throughout the State, municipal planning boards, and municipal zoning boards of adjustment, hear applications made by property owners seeking relief from zoning ordinances. The relief requested is typically a variance. A variance is permission to deviate from the specific terms and conditions of applicable zoning regulations.

When the New Jersey Municipal Land Use Law (MLUL) was written, it included a statutory scheme for the proper creation of land use regulations, and deviations from those regulations. The New Jersey State Constitution protects the property rights of land owners, and governmental limitation upon those property rights needs to be done carefully, and monitored carefully.

Master Plan

The MLUL statutory scheme includes provisions for each individual municipality throughout the State to create its own Master Plan. The municipal planning board is given the power to adopt this Master Plan. This plan is comprised of many elements, and it serves as a guide for the use and development of land throughout the municipality. Zoning ordinances are created and based upon this Master Plan. If a municipality does not have a Master Plan, it cannot have valid zoning ordinances.

In order to preclude a Master Plan from becoming old and outdated, every municipality is obligated by the MLUL to re-examine its Master Plan at least one time every 10 years. Further, the MLUL requires municipal planning boards and municipal zoning boards of adjustment to review the applications that it receives each year, including applications for variance relief, and to report on these applications to the municipal governing body. When a planning board adopts and later re-examines its Master Plan, the planning board delivers the plan or the re-examination report to the governing body.

So the planning board creates and re-examines the Master Plan. Thereafter, the governing body, the municipal planning board, municipal zoning board, and all property owners and parties interested in the use and development of any land within the municipality, are to be guided by this document.

The MLUL provides that municipal zoning regulations must be consistent with the municipal Master Plan, and any inconsistency must be speci cally and carefully considered by the municipal governing body, and its planning board in connection with the creation and/or amendment of any zoning or development regulation.

What if the Municipality is Not Doing Its Job?

In light of this very thoughtful and comprehensive statutory scheme for the creation of zoning regulations, and the enforcement of these regulations, what does a property owner do when the municipal government is not paying attention? What if a Master Plan recommends that certain action be taken in order to regulate certain uses, or certain pieces of property, and the governing body of the municipality ignores the recommendation? What happens if this has been going on for more than 30 years, and the property owner cannot use its property in the way that it is zoned, because the conditions all around the property dictate that the property be used for a different purpose? And what happens after the property owner asks the municipal government or municipal agencies for action or relief and the request is ignored or denied?

The leading legal treatise in New Jersey for land use, “New Jersey Zoning and Land Use Administration” by William M. Cox and Stuart R. Koenig, revised and updated by Jonathan E. Drill and Lisa A. John-Basta says that “there is no clear statutory provision dealing with the failure of the governing body to amend or adopt ordinances in response to significant changes in a new Master Plan or re-examination report that requires such or re-examination report that requires such amendment or adoption. It would seem that an unreasonable delay in adopting such an ordinance change or in adopting a resolution stating the reasons for not doing so should create, at some point in time, a presumption that the ordinance is invalid.” This comment appeared in the 2015 edition of this treatise. Shortly thereafter, the Appellate Division of the New Jersey courts decided the case of Myers vs. Ocean City Zoning Board, 439 N.J. Super 96(2015). In that case, the Appellate Division disagreed with this statement that such an ordinance should be presumed invalid. That court also stated clearly that at a minimum “if a governing body chooses not to act in the wake of a Master Plan revision, it does so at its own peril”.

WJ&L has been prosecuting a case in the Superior Court of New Jersey, Bergen County, which alleges on behalf of one of our clients that the municipal governing body has failed to act properly to make the zoning ordinance of the town consistent with the Master Plan. We have asked that the ordinances be amended to be consistent, or that the ordinance that is inconsistent be deemed to be invalid as applied.

In June of this year, a Bergen County Superior Court Judge made a determination that the Village of Ridgewood did not act properly according to the law and the statutory scheme when considering amendments and the implementation of terms and conditions of its municipal Master Plan, as it pertains to the Valley Hospital. And, like the warning of peril in the Myers case described above, this Judge made a determination that the applicable zoning ordinance, as applied, is arbitrary, capricious and unreasonable, invalidating the ordinance and remanding the matter to the municipal governing body to reconcile an ordinance with the applicable Master Plan document. The Court ordered that the municipality has a limited time to take this action, and appointed a Special Master to oversee the process.

Perhaps, and hopefully, the pendulum is shifting toward holding a municipal government responsible to adopt and maintain land use and development regulations which are consistent with the law, and with the practical reality affecting properties and property owner’s rights.

Stuart D. Liebman is a Partner of Wells, Jaworski & Liebman and practices actively in the Land Use and Real Estate areas.

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