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The Cerebral Palsy Center, Bergen County, Inc. v. Mayor and Council of the Borough of Fair Lawn

BER-L-2820-03 (N.J. Super. Law Div. 2003) (Unpublished)

ZONING—A zoning ordinance may provide for involvement by a public advocate and it is permissible to require land use applicants to pay for the cost of such advocates just as they can be required to pay for the cost of municipal experts.

Municipalities have long had the right to establish the position of municipal public advocate to represent the interest of the public before local planning and zoning boards. Here, a particular municipality adopted an ordinance assessing the costs of such a public advocate to an applicant appearing before the zoning board. The applicant asked the Court to find that assessing such costs was “arbitrary and capricious, as well as contrary to the fundamental principles of zoning.” It first argued that an applicant could not be aware of the monetary expenditure when filing the application and that it was an arbitrary delegation of power to allow the public advocate to use “sole discretion in determining how involved he will be in participating in an application.” The applicant also argued that the fundamental principle of zoning was violated because public advocates “would need to participate less in wealthy areas since their neighbors have sufficient resources to hire their own attorneys and also that developers in poor areas would incur a greater cost that would serve as a disincentive to developing those areas.” It also argued that the public advocate, as an employee of the municipality, was already compensated by a salary. Other arguments included that the Municipal Land Use Law (MLUL) did not expressly provide for charging such costs and that under the Local Public Contracts Law, municipalities are required to make payment on their own contracts, not to compel a zoning applicant to make such payments.

The Law Division thought this to be a case of first impression. It took note that the MLUL “contains no language acknowledging the existence of a municipal public advocate, nor any language providing base compensation.” Nonetheless, the MLUL was adopted in 1975 and it has been amended many times since. One year after its adoption, case law held that municipalities could create the position of public advocate. The legislature had almost 30 years to reject that concept, but did not. Consequently, it appeared to the Court that the legislature was content with the existence of municipal public advocates. Further, the Court believed that because the MLUL did not expressly prohibit municipalities from requiring applicants to pay for public advocates when pursuing land use applications, and that such a requirement was valid. It pointed specifically to a provision of the MLUL that allows municipalities to specify “the procedure by which municipalities may charge applicants for professional services rendered to the municipality or to the local board for review of applications ... or other purposes under [the MLUL].” Basically, the Court held that “[i]t has never been the land use law in the State of New Jersey that ‘That which is not expressly permitted is prohibited.’”


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