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New Jersey Shore Builders Association v. Township of Jackson

401 N.J. Super. 152, 949 A.2d 312 (App. Div. 2008)

ZONING; ORDINANCES; OPEN SPACE — The Municipal Land Use Law gives a municipality authority to require contributions from a developer for off-track water, sewerage, drainage, and street improvements, but does not authorize a municipality to extract monetary contributions for open space or recreational areas.

Two builders associations challenged amendments to the building codes of two municipalities. The challenged codes required developers, as a condition for approval of large residential developments, to set aside land to be used as common open space or recreational areas or, in the alternative, to pay an assessment in lieu of the set-aside. In a lower court decision involving one municipality, that court found the ordinance unenforceable. In a lower court decision involving another municipality, the lower court reached a different conclusion.

The Appellate Division found the ordinances to be invalid. It noted that municipalities do not have the inherent right to zone and that a municipality’s right to regulate zoning is limited to what has been delegated under the Municipal Land Use Law (MLUL). This means a municipality cannot enact an ordinance restricting development or imposing certain conditions on development unless expressly permitted by the MLUL. In this case, the Court found that, under the MLUL, municipalities have the right to require developers of planned unit developments to set aside land for recreational space. The statute contained limiting language that allows municipalities to require open space in planned unit projects, but not at all large residential developments. The Court rejected the municipalities’ argument that they had an implied right to impose open space requirements, noting that such an interpretation would render the limiting language meaningless. The Court also rejected one municipality’s claim that it had the right to require the developer to pay an assessment for off-site improvements in lieu of on-site set-asides for open space and recreation. The Court found that the MLUL limited a municipality’s authority to require a contribution to those for off-tract water, sewer, drainage, and street improvements. Since the MLUL does not specifically authorize a municipality to extract monetary contributions for open space or recreational areas, a municipality cannot impose it as a condition for approval of a development plan.


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