January 1, 1900

by Stephen M. Eisdorfer

Seven years ago, in a case entitled Pizzo Mantin Group v. Randolph Planning Board, the New Jersey Supreme Court sharply restricted the power of local planning boards to deny applications for subdivision and site plan approval. In two recent cases, the Appellate Division has applied the legal standards enunciated in Pizzo Mantin to overturn denials of site plan approvals. The rulings give builders powerful tools both to narrow the scope of planning board proceedings and to limit the power of even hostile planning boards to deny approvals.

The Pizzo Mantin Case

In Pizzo Mantin, the Supreme Court declared that a planning board cannot deny an application which conforms to the requirements of the local zoning and subdivision or site plan ordinance based solely upon its view of the general purposes of zoning and the public welfare, independently of the standards enumerated in the zoning ordinance and subdivision ordinance. The Court held that the Municipal Land Use Law (MLUL) "evinces a legislative design to require consistency, uniformity, and predictability in the subdivisionapproval process." It declared that, under the MLUL, it is the responsibility of the municipal governing body to establish standards in the local zoning ordinance. Once it has done so, the role of the planning board is limited to determining whether the application complies with those standards. The board is not free to impose its own open-ended discretion.

Moreover, the Court held that municipalities cannot circumvent the requirements of the MLUL by adopting ordinances that give planning boards open-ended discretion. It declared that: "Without clear standards established by the local ordinance, the applicant cannot estimate the cost of the approval process or predict the ultimate outcome. Further, the absence of express standards may invite inconsistency, encourage controversy, and lead to arbitrary action by the planning authority. This outcome would be the antithesis of the intent of the MLUL."

Finally, the Supreme Court held that planning boards have a duty to work "interactively" with the applicant to enable the applicant both to understand and to comply with any demands that the board might lawfully make.

Despite the Supreme Court's forceful language in Pizzo Mantin, some planning boards have continued to deny applications based upon the failure of the applicant to meet requirements of the board's own devising which were not imposed by local land use ordinances. Two recent decisions from the Appellate Division have applied the legal standards established in Pizzo Mantin to overturn such denials.

The Toll Brothers Case

In Toll Brothers v.West Windsor, the planning board had reluctantly granted preliminary site plan approval for a large inclusionary residential development. It imposed 172 conditions on the approval (including a condition purporting to the void the approval if the applicant appealed any of the conditions). The Appellate Division upheld a lengthy and detailed opinion issued by the trial court striking down many of the conditions as being inconsistent with Pizzo Mantin. The Appellate Division affirmed the trial court's decision, rejecting the town's argument that Pizzo Mantin does not apply to inclusionary developments. Similarly it affirmed the decision by the trial court to strike many conditions which were not based upon terms of the ordinance, but merely upon the views of the planning board as to what would represent good planning.

The Goodfellows Case

In W.L. Goodfellows and Co. v. Washington Township Planning Board, the planning board had denied a site plan application for lack of an adequate drainage plan. The municipal engineer had testified that the plan submitted by the applicant was adequate on paper, but that it relied upon a drainage easement, which the applicant had not yet secured, to carry storm water across adjacent property. The planning board denied the application because of its view that, without the easement necessary to put it into effect, the plan submitted was not adequate. The Appellate Division reversed a decision by the trial court upholding this denial.

After restating the holdings in Pizzo Mantin, the Appellate Division held that nothing in the ordinance required that necessary easements be secured prior to site plan approval. The requirement was one which the planning board imposed without any ordinance authority. It was also one which the builder could not have anticipated from a reading of the ordinances. The board could not deny approval for an otherwise permissible use on this basis.

In addition, the Appellate Division held that the planning board had failed to interact with the applicant to facilitate his understanding of and compliance with the demands of the planning board. It held that the planning board could properly have granted site plan approval, conditioned upon securing the necessary easement. This would have enabled the builder to satisfy the board's demands while not denying approval for an otherwise permissible use.The Appellate Division held that it was a reversible error for the planning board to deny the application rather than granting it subject to conditions.

The Lessons To Be Learned

The message of these decisions is that planning boards must take Pizzo Mantin seriously and must change the way they make decisions. The cases eliminate any justification for boards' demanding or permitting testimony on topics unrelated to compliance with municipal ordinances. They also limit the grounds upon which boards can lawfully deny an application. Through effective advocacy, a builder's attorney may be able to use these precedents to expedite a site plan or subdivision application and to limit the opportunities for the board to deny approval.

Stephen M. Eisdorfer is also a partner within the Land Use Division of Hill Wallack. A Member of the Board of Directors of the New Jersey State Bar Association's Land Use Section, he concentrates his practice in land use litigation, including Mount Laurel litigation and litigation involving the civil rights statutes.