Current Issues in Zoning

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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



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;



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



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:



(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.



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



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



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.



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;



• 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



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.



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.



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



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



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:



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



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



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



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



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



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.



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.



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:



…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.

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Documents

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