Agenda - Planning Commission - 09/03/2009

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- -,0../ Zoning Bulletin August 10, 2009 I Volume 3 I No. 15 1 ./ Validity of Zoning Regulations~Builders Association challenges townships' ordinancesl which require open space set-asides as condition of development Association argues townships lack authority under state law to promulgate such ordinances Citation: New Jersey Shore Builders Ass'n v. Township of lacks on, 199 N.]. 449, 972 A.2d 1151, 2009 WL 1842351 (2009). ......:<:::. 0) NEW JERSEY (06/25/09)-The New Jersey Shore Builders Associa- tion (the "Association") challenged the ordinances (the "Ordinances") of two New Jersey townships (collectively, the "Townships"). The Or- dinances required, as a condition of development approval, developers to set aside land fot open space or recreational areas or to make a pay- ment in lieu of a set-aside. The Association argued that the Ordinances were invalid because the Townships lacked the authority to adopt the Ordinances. Specifically, they claimed that the state's Municipal Land Use Law ("MLUL") (see N.J.S.A. 40:55D) did not confer authority on municipalities to promulgate such ordinances. A trial court invalidated one township's ordinance, while another trial court upheld the other township's similar ordinance. In a consolidated appeal, the Appellate Division affirmed the former and reversed the lat- ter decision. It agreed with the Association that, under the MLUL, Asso- ciations lacked the authority to adopt the Ordinances. The Townships appealed.- DECISION: Affirmed. The Supreme Court of New Jersey held that the Townships lacked the authority under the MLUL to promulgate the Ordinances. The court explained that the MLUL was a "carefully constructed and comprehensive framework governing the powers of municipalities relat- ed to land use and development." As such, municipalities had to exercise their powers relating to zoning and land use in a manner that "strictly conform[ed]" with the MLUL's provisions. The court acknowledged that the state Legislature, in the MLUL: recognized the benefits to be derived from open space; and included its preservation among the enumerated purposes. However, the court found that Legislature had limited the manner in which municipalities could demand that open space be made available. That was because the Leg- islature had not included in the MLUL a "general mechanism" for ef- fectuation of preserving open space. While the Legislature specifically @ 2009 Thomson Reuters 9 63