Agenda - Planning Commission - 02/07/1995

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~ Z.B. January 15, 1995 --Page 7 different category of group homes than the city's proposed facility. The code treated commun~ty~ residences and youth treatment homes differently. It did not give the board ~ower to grant a special exception for a youth treatment home that housed movie than 15 people. ' McCray v. '.McGee, 504 A.2d 1128 (1986). Zoning Chang~ -- Supermarket Says Borough Can't Change Zoning Through Nonb~nding Referendum Great Atlantic & Pacific Tea Co. Inc. v. Borough of Point Pleasant, 644 A.2d 59~8 (New Jersey) 1994 Before 199~ the zoning ordinance for Point Pleasant Borough, N.J., pro- hibited retail us~s in Town Center. The borough's master plan stated Town Center's purpos~ was for Iow-intensity, nonretail uses (like offices), or to pro- vide a more intehsive area for public purposes. In December[ 1992, the borough council amended the zoning ordinance to permit retail use[s in Town Center. Shortly after the amendment passed, Great Atlantic & Pacit}ic Tea Co. Inc. (A&P) bought land to build a supermarket in Town Center an.d filed a site plan with the planning board for approval. While A&P'~ plan was pending, the borough council adopted a resolution asking the count~ clerk to place a nonbinding question on the ballot. The ques- tion asked voter~ whether the council should amend the zoning ordinance to prohibit retail u~s in Town. Center. A&P sued thle borough to block the clerk from putting the question on the ballot, claiming !t was a referendum. The .state municipal land use law prohib- ited zoning issuds from being decided by referendum. . The court ordkred that the county clerk could not put the question on the ballot. The court ruled !he question was an amendment to the ordinance, so it could not be decided bb' referendum. It also found the state municipal land use law did not distinguish between binding and nonbinding referenda, and the borough's zoning power wps a pohce power that could not be delegated to the public through a refererldum. When the bokough appealed, the a,p_peals court reversed the lower court's decision and ordered it to deny A&P, s request for relief. The appeals court said the land useilaw did not prohibit nonbinding referenda on zoning issues. The questionlwas put to the voters. The majority preferred that retail uses not be allowed in; Town Center. The council i'einstated the prohibition on retail uses in Town Cementer. Based on the amendment, the town planning board re- fused to conside~ A&P's site plan. A&P appeale~d to the state Supreme Court. DECISION: Appeals court's decision affirmed. State law onlk prohibited binding referenda on zoning questions from ap- pearing on the b~llot. Nonbinding questions merely ascertained public senti- ment, which was different from asking voters to approve or reject specific laws. Levi~ v. Tow!~ship of Parsippany-Troy Hills, 411 A.2d 704 (1980). }