The Borough of Fair Lawn created the position of municipal public advocate to oppose applications before the planning and zoning board on behalf of neighboring residents in the “public interest”. The Law Division held that the MLUL authorizes the fee shifting requiring applicants to fund the fees and costs incurred by the municipal advocate, as well as any experts or other professionals retained by it in opposing the application on behalf of neighboring residents. On December 1, 2004 NJBA participated as amicus in Appellate Division oral arguments and on January 27, 2005 the Appellate panel found the fee shifting provisions contrary to the MLUL and this invalid. (The Cerebral Palsy Center v. Borough of Fair Lawn)

Superior Court, Appellate Division Opinion, January 27, 2005

Appellate Division invalidates increased notice requirements
On February 2, 2006 an Appellate panel unanimously rejected an Edison Township ordinance that expanded the notice requirements for applicants seeking local land use approvals.  The Appellate Division found that the town exceeded its authority under the MLUL by requiring each applicant to (1) place a sign on site describing the development and (2) give notice to neighboring property owners within 300 feet of the proposed development.  NJBA’s amicus brief argued that these requirements were not permitted by the MLUL and that the appeals panel should affirm the trial court’s decision invalidating the ordinance. (Verizon Wireless v. Township of Edison)

Superior Court, Appellate Division Decision, February 2, 2006

Supreme Court Reverses Appellate Panel and Permits NOV’s after CO
NJBA filed an amicus brief challenging a municipality’s enforcement authority to issue a Notice of Violation (NOV) against a developer years after a certificate of occupancy (CO) was issued for residential structures and title transferred to new owners. An Appellate Division panel ruled in favor of DKM that a municipal construction official does not have the authority to issue a NOV to a residential builder years after a CO was issued and title transferred to the new homeowner. On January 24, 2005 the New Jersey Supreme Court unanimously reversed holding that NOV’s may be issued (and penalties assessed) against developers subsequent to a CO so long as the statute of repose (i.e. 10 years) has not triggered. (DKM Residential Properties v. Twp. of Montgomery)

Superior Court, Appellate Division Opinion, January 24, 2005

NJ Supreme Court Rejects DEP’s Wetlands Regulations
NJBA challenged DEP’s freshwater wetlands regulations which require residential developments to add 20-ft. buffers to the perimeters of houses, in addition to the buffers of up to 150-ft. around the wetlands themselves. The rules also impermissibly limit the law’s “general permits.” The NJ Supreme Court reversed the Appellate Division and voided DEP’s rules as ultra vires and invalid. (NJBA v. NJDEP)

NJ Supreme Court Opinion, July 26, 2004

NJ Supreme Court Upholds Broad Grant of Municipal Authority
NJBA challenged a municipal ordinance imposing a cap on the calculation of “floor area ratio” inconsistent with existing provisions for determining density contained in the Municipal Land Use Law. Under the MLUL, “floor area ratio” is defined as the sum of all floors compared to the total area of a site. However, the municipal ordinance established an arbitrary cap of 2,200 square feet regardless of lot size, which the NJBA argued is ultra vires the MLUL. The NJ Supreme Court agreed with the Appellate Division upholding the ordinance and held “that with a narrow exception, the MLUL does not preclude a municipality from adopting a zoning ordinance that defines terms differently from the definitions in the MLUL.” (Rumson Estates, Inc. v. Mayor & Council of the Borough of Fair Haven – Amicus)

NJ Supreme Court Opinion, August 5, 2003

NJ Supreme Court Upholds Time Limits on Approvals
NJBA filed an amicus in an appeal involving the permanency of preliminary approvals. The MLUL gives preliminary site plan approvals perpetual life but only a limited period of protection from changes in zoning. The trial court held that an ordinance that imposed a time limit on the life of a preliminary approval was valid. The Appellate Division reversed and the NJ Supreme Court upheld the ordinance. (D.L. Real Estate v. Pt. Pleasant Beach Planning Board – Amicus)

NJ Supreme Court Opinion, April 28, 2003

Appellate Division Upholds DEP’s Use of Landscape Project to Determine Wetlands Classifications
NJBA challenged DEP’s use of its Landscape Project method in determining the size of the buffer of freshwater wetlands. The DEP rules, which provide that the Landscape Project method will be used to identify threatened and endangered species habitats in determining the “resource classification” of wetlands, were upheld by the Appellate Division. (NJBA v. NJDEP I/M/O NJAC 7:7A-2.4)

Superior Court, Appellate Division Decision, December 23, 2003

Appellate Panel Upholds 20-Year Maintenance Guarantee Ordinance
NJBA challenged the ordinance requiring a 20-year maintenance guarantee for stormwater management systems (basins). The trial court held that the ordinance exceeds its authority under the MLUL and the guarantee results in an unlawful exaction / illegal tax. The Appellate Division reversed the trial court upholding the maintenance guarantee ordinance. (NJBA v. Township Of Egg Harbor)

Superior Court, Appellate Division Decision, March 6, 2003