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Elite Development, LLC v. Mayor and Council of the Town of Kearny

A-2911-04T1 (N.J. Super App. Div. 2006) (Unpublished)

ZONING; ORDINANCES; MLUL—Where a zoning ordinance is adopted but does not serve any purpose of the Municipal Land Use Law, it is invalid.

At the request of its mayor and municipal council, a municipality’s planning board, after reviewing recommendations of an outside municipal planning consultant, prepared a report proposing amendments to the municipality’s zoning ordinance. The relevant changes affected one of the municipality’s residential zones. Prior to issuance of the planning board’s report, a property owner in the affected residential zone filed an application for subdivision approval. The application was deemed complete and capable of review by the planning board before the mayor and council adopted the board’s recommendations. Before doing so, the mayor and council held three public hearings. The new ordinances were approved prior to the hearing on the property owner’s subdivision application. The property owner then filed an action to invalidate the new ordinances. Finding that the municipality failed to provide proper notice to the affected property owners pursuant to the Municipal Land Use Law (MLUL), the lower court invalidated the ordinances. The lower court further ruled that because the ordinances did not serve any purpose of the MLUL, the ordinances would be invalid even if the municipality had provided proper notice. As a result, the lower court remanded the subdivision application to the planning board for further consideration. The mayor, council, and planning board appealed.

The Appellate Division found the ordinances had been adopted without the required notice. The municipality was claiming that the ordinances fell within an exception to the notice requirement because the ordinances related to a general reexamination of the municipality’s master plan. The Appellate Division rejected this argument, finding ample factual support in the record to buttress the lower court’s determination that the ordinances were not adopted as part of a general reexamination of the municipality’s master plan.


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