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Pennington Personal Storage, LLC v. Ferrara

A-1848-02T2 (N.J. Super. App. Div. 2003) (Unpublished)

ZONING; ORDINANCES—Neither a municipality nor its planning board have any obligation to a developer to tell it that the zoning laws might be changing so as to preclude a project and make it wasteful to apply for land use approvals in the first place.

A contract purchaser sued a municipality and its planning board members for encouraging it to submit site plan and subdivision approvals, but failing to advise it that the municipality was contemplating changing the zoning to prohibit the buyer’s intended use of the property. At the time the purchase contract was executed, the municipal zoning code permitted the property to be used for warehousing and mini-storage. The buyer submitted a conceptual plan to the planning board’s application review committee. It then appeared before the committee, and based on the committee’s comments the buyer prepared a complete application and filed it with the planning board. Shortly thereafter, the municipality changed its zoning ordinance. The new ordinance prohibited the buyer’s intended use of the property, making its application moot. The buyer claimed that the planning board officials knew at the time they met to review the application that they intended to change the ordinance to prohibit the intended use, and that the planning board officials had a duty to inform the buyer instead of leading it to believe its application would be approved. The buyer sued for the expenses it incurred in preparing the application, claiming that, had it known that the property would be re-zoned, it never would have incurred the expenses.

The lower court dismissed the buyer’s complaint. It applied the principles of legislative immunity. Under the doctrine of legislative immunity, a public employee is not liable for any injury caused by his or her adoption or failure to adopt any law. The lower court found that the preliminary discussions among the planning board officials regarding a possible zoning ordinance change were part of the overall process leading to the adoption of the zoning ordinance. Therefore, the planning board officials were immune. Further, they had no obligation to inform the buyer of a potential revision to the zoning ordinance. A municipality’s requirements to inform the public of the adoption of an ordinance is governed by the statute. A new statute must be read and passed on first reading at a public meeting; published and posted with notice of a public hearing. There is to be a second reading at another meeting and then it must be passed at a public meeting. Finally, it must be published with a notice of adoption. There is no requirement to alert property owners of potential changes to the zoning code prior to the first reading. Property owners pursue applications at their risk. The Appellate Division affirmed.

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