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

374 N.J. Super. 437, 864 A.2d 1184 (App. Div. 2005)

ZONING; PUBLIC ADVOCATES—A municipal ordinance that shifts the cost of a land use board’s public advocate to the applicant is contrary to the Municipal Land Use Law and is unenforceable.

A corporation filed an application seeking municipal variances to allow it to build an annex to its facility. In addition to the $900 application fee, the municipality charged the corporation more than $16,000 for the work done by a Public Advocate who was appointed under a municipal ordinance. This ordinance established the position of a Public Advocate and authorized that person to appear before planning boards, agencies, and courts in “proceedings of substantial public importance.” The Public Advocate was to appear as a representative for the public and was authorized to review and make comments on variance applications such as the corporation’s. The corporation sued the municipality, arguing that the ordinance establishing the Public Advocate position contained an unlawful fee-shifting provision requiring the applicant to be responsible for both the fees of the reviewing board and the fees of the Public Advocate and his or her experts. In effect, the corporation argued that the municipality had therefore unlawfully charged it for the work done by the Public Advocate.

The Court decided in the corporation’s favor, holding that the ordinance was contrary to the New Jersey Municipal Land Use Law which sought to control and limit the costs of applying for land-use approval while the ordinance’s fee-shifting provision only served to increase those costs. It was therefore unlawful for the municipality to charge the corporation for the services rendered by the Public Advocate. Consequently, the municipal ordinance’s fee-shifting provision was unlawful.

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