Agenda - Planning Commission - 09/04/2008

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;1 i .i Ii II " !I II Ii ~ I I I ( ') (,--) August 10, 20081 Volume 21 No. .15 - , ') .' developer cOlild make a monetary contribution in lieu of all or a part of the requirements. Egg Harbor Township's ordinance similarly required a residential de- veloper to set aside one-half acre for recreation and open space per one thousand projected residents of the development. Its ordinance also al- lowed for a monetary contribution in lieu of those requirements~ The New Jersey Shore Builders Association (Shore Builders) chal- . lenged the zoning ordinances of Jackson Township. The Builders League of South Jersey (Builders League) challenged the zoning ordinances of Egg Harbor Township. (Shore Builders and Builders League are here~ inafter collectively referred to as "builders.") The builders argued that the zoning ordinances requiring the exactions were beyond the authority granted to the townships under New Jersey's Municipal Land Use Law (MLUL) (New Jersey Stat. Ann. S 40:55D-l to -163). The MLUL was the state legislation that gave local governments the power to zone. The Townships conceded that the MLUL did not give them express authority to require the challenged exactions. However, they claimed that . the MLUL impliedly authorized them to do so. The trial court concluded that Jackson Township's exaction require- ments were beyond ~he authority granted to the Township under the MLUL and were unenforceable. The trial court concluded that Egg Harbor Township's exaction requirements were authorized by the MLUL and were _ valid and enforceable. Those decisions were appealed and c;;onsolidated in a matter before the Superior Court of New Jersey, Appellate Division. DECISION: Order on Jackson Township ordinance affirmed; Order on Egg Harbor Township ordinance reversed and remanded.. The court agreed with the builders that, in requiring land be set-aside for open space or recreation as a condition of approval, the Townships exceeded their authority under the MLUL. The court found that the MLUL did not give municipalities the power to require such set-asides for all developments, unless the municipality paid the developer for the land. Such exactions were only authorized by the MLUL for "planned developments," said the court. The court found that several provisions of the MLUL addressed the set- aside of common open space as a condition of planned development appli- cation (see N.J.S.A. SS 40:55D-43a; 40:5SD-38b(S); 40:S5D-39; 40:S5D- 45; 40:55D-45.2). The court emphasized that all of those provisions had f~guage specifically limiting such set-asides to "planned developments" only, and not for all developments as the Townships had argued. While the court did find one provision of the MLUL that referred to the reservation of land for public use in all developments (see N.J.S.A. @ 2008 Thomson ReuterslWest 3 85