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Citizens United to Protect the Maurice River and its Tributaries, Inc. v. Township of Maurice River

A-2142-04T1 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; ORDINANCES; TELECOMMUNICATIONS—There is a distinction between “benign” and “active” uses and cellular towers are more benign than intensive; therefore an ordinance can characterize a cellular tower as a second principal use.

A municipality adopted a comprehensive land use ordinance prohibiting more than one principal use per lot. It also allowed cellular telecommunication towers as conditional uses in certain zoning districts. The joint planning board and zoning board of adjustment determined that certain changes were necessary to bring the ordinance and zoning map into conformity with the municipality’s master plan. One such change was to permit the installation of cellular telecommunication towers on any lot even if that lot has a pre-existing permitted primary and/or accessory use. The municipality adopted the proposed changes.

A group of the municipality’s residents sued, challenging the adoption of the ordinance. The lower court dismissed the complaint holding: (a) a municipality may provide for a “mixed-use concept” in its zoning ordinances; (b) there exists a distinction between “benign” and “intensive” uses, and cellular telecommunications towers are more benign than intensive (this distinction being sufficient to justify allowing a benign use as a second principal use); and (c) the complainants failed to overcome the presumption of validity afforded municipal zoning ordinances. The Appellate Division affirmed.


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