Challenges to Planning Board Decisions Get More Complex
By: Michael J. Lipari, Esq.
In a decision just issued by the Appellate Division, the court held that if a trial court hearing a challenge to a planning board decision perceives a substantial question concerning the validity of the zoning ordinance under which the approval was sought, the court should join the governing body to the action and determine the validity of the zoning ordinance prior to hearing the merits of the board’s decision. (See Jackson Holdings, Inc. v. Jackson Township Planning Board.)
In Jackson Holdings, a developer was denied a subdivision approval based upon the municipality’s conditional use ordinance. The main criterion to satisfy the ordinance was whether the planning board found that the “proposal is not inconsistent with and will not create traffic hazards or adversely affect traffic patterns established by surrounding development.” The planning board denied the application, based upon that language.
The developer filed a lawsuit challenging the decision of the planning board but did not directly challenge the conditional use ordinance in its complaint. The issue was first raised on the eve of trial, when the developer argued that the ordinance failed to contain sufficiently definite standards and the municipality had therefore delegated its zoning power to the planning board. The trial court agreed, but instead of invalidating the ordinance, it remanded the application to the planning board for adoption of a resolution approving the subdivision application.
On appeal, the Appellate Division ruled that the proper course of action in such a case is to determine whether the ordinance was valid before undertaking to review the board’s decision. This is to be done by bringing the governing body into the lawsuit to defend the challenge to its ordinance. Realizing that this decision could lead to abuse by third party objectors, the court ended with a cautionary note that its holding should not be used as a means to complicate otherwise straightforward reviews of board decisions by raising spurious challenges to zoning ordinances.
A party challenging a board decision should identify any genuine issue concerning the applicable zoning ordinances at the outset of the litigation. Identification of the issue at an early stage would streamline the case and avoid undue delay.