January 1, 1900

by Lionel J. Frank

Our Appellate Division has confirmed that aesthetics may properly be considered by zoning and planning boards where applicants are seeking "c" and "d" variances, since impact upon the neighborhood is a relevant criterion when evaluating variances. However, more and more municipal zoning ordinances are incorporating aesthetics into the mix of requirements that must be addressed by applicants for site plan approval. This raises the question of whether so-called "aesthetic zoning" is permitted under the Municipal Land Use Law (MLUL), and if so, under what circumstances is it enforceable?

The MLUL does not explicitly permit aesthetic zoning. Our courts have held that zoning ordinances must meet the "test of certainty and definiteness." This means that an ordinance must be "clear and explicit in its terms", and must provide "adequate standards to prevent arbitrary and indiscriminate interpretation and application" by local municipal officials. As the Appellate Division has noted, "because of the subjective elements which can be involved in matters of architectural design, the necessity for clear and definite standards is particularly applicable to ordinances which seek to control this aspect of construction."

When zoning ordinances are drafted without that requisite certainty and definiteness, municipal officials are left with "too broad a discretion [which] permits determinations based on whim, caprice or subjective considerations." In such circumstances, the court must invalidate the ordinances, as they should any other, based on impermissible vagueness and indefiniteness. If such ordinances fail to provide for such definite standards, we can expect to see increasing challenges to their validity and enforcement.