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RG-2 Associates, L.L.C. v. Jackson Township Planning Board

A-2971-08T3 (N.J. Super. App. Div. 2009) (Unpublished)

ZONING; ORDINANCES — A land use board cannot hold hearings with respect to a land use application if the application is based on a municipal ordinance that requires, but had not yet received, required approval from a state agency.

A developer received subdivision approval for a residential project. After the approval was granted, the municipality adopted an ordinance that included a provision authorizing the submission of applications for general development plan (GDP) approval. The developer applied to the municipality for a GDP. The planning board then conducted numerous public hearings and voted to approve the application. Prior to adopting a resolution memorializing its decision, the board was notified by the Pinelands Commission that, according to an applicable statute, the municipality’s ordinance required the Commission’s formal review and approval before it could become effective. The Commission thereafter certified its approval of the ordinance without alteration. The board then voted not to memorialize its earlier GDP approval, to vacate the prior approval, to reopen hearings, and to require the developer to re-notice for a new public hearing. The board determined that it lacked jurisdiction to conduct its earlier hearings because the ordinance upon which the developer sought approval was not in effect at the time of those hearings. The developer challenged the board’s action.

The lower court affirmed the board’s decision that the board did not have authority to hear the developer’s application before the ordinance was approved by the Pinelands Commission. The Court reasoned that boards should not be encouraged or permitted to hear land development applications under ordinances that still require approval from State agencies. Its first reason was that there was no assurance that the ordinance would receive approval and certification. Its second reason was that if amendments to an ordinance were recommended, boards and applicants would have to reopen and revisit such applications consistent with the recommended standards. Finally, it reasoned that a board could rescind an action or reopen a hearing once completed if there had been mistake or inadvertence, as was the case here. The developer appealed further.

The Appellate Division affirmed for substantially the same reasons stated in the lower court’s opinion. It held that an ordinance is ineffective prior to certification and a planning board is without legal authority to take action pursuant to the terms of a proposed certification. Here, the ordinance was certified by the Pinelands Commission after the board’s initial vote. Since the Commission could approve, reject or approve the ordinance with conditions, the statutory requirement of Commission certification was clearly substantive and not procedural in nature, i.e. the Commission might have amended or even rejected the ordinance. The fact that the ordinance was ultimately certified without amendment did not alter the reality that the board initially had acted with authorization. It believed the ordinance was not ineffective due to a mere technical flaw; rather the statutory requirement of Commission review and certification was substantive and implicated the very authority of the board to act. Consequently, it concluded that the ordinance was ineffective at time of the board’s hearings and original decision and that the board’s action was invalid and void.

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