January 1, 1900

by Kenneth E. Meiser

It should be self-evident that an applicant who seeks no variances and fully complies with the terms of the zoning ordinance is entitled to an approval. Yet, it took a Supreme Court decision to fully establish this point. The Randolph Township Planning Board had declared that it could reject a fully conforming application based upon the board's subjective decision that the application was not consistent with the public welfare and the general purposes of zoning established in the Municipal Land Use Law (MLUL).

The Pizzo Mantin Case

In an important victory for developers, the New Jersey Supreme Court unanimously rejected the Randolph Planning Board's argument in a case known as Pizzo Mantin Group v. Tp. of Randolph, 137 NJ. 216 (1994). In that case, the Court declared that, without clear standards established in the local ordinance, an applicant could not estimate the cost of the approval process or predict the ultimate outcome. Furthermore, if board members were free to unilaterally utilize their own judgment in the absence of express standards, there would be an invitation to inconsistency, controversy and arbitrary action by boards.

Thus, the Supreme Court declared such a prospect to be the "antithesis" of the MLUL's intended framework, which was that there be consistency, uniformity and predictability in the subdivision approval process. Therefore, the Pizzo Mantin case provides that, unless the applicant fails to abide by the standards in the ordinances, a board has no choice but to grant an application.

The Pizzo Mantin decision is also important when a board grants a conditional approval. Frequently, even when a planning board is prepared to grant an approval, board members will insist on imposing conditions which have no basis under the local ordinances. For example, a board member might demand noise barrier restrictions or soil testing for contaminants on property that has only been used for farming, even though those conditions are not based upon any provision in the local zoning or subdivision ordinances. The Pizzo Mantin principles should therefore be applied with equal weight to invalidate conditions that are not authorized by the local ordinances.

Challenging Conditions of Approval

As to many such conditions, the cost of challenging them could outweigh the cost of compliance. Yet, it is now clear that, when the cost of compliance is intolerable, a developer can challenge the condition in court. Years ago, courts would treat the approval as an all or nothing proposition. Today, however, courts will usually delete an unauthorized condition and permit the remainder of the approval to remain in effect. The courts recognize that it would be unreasonable to require that the developer be given the choice of no approval or an approval with unauthorized conditions.

In sum, an applicant faced with an arbitrary denial or an approval with intolerable conditions may have no choice but to appeal. An applicant faced with an approval containing arbitrary, unauthorized conditions should do a careful financial analysis, in conjunction with sound legal counsel, to determine whether the conditions should be challenged.

Kenneth E. Meiser, a Land Use Division partner, serves on the New Jersey Builders Association's Legal Action Committee and is Vice-President of the 450-member Land Use Section of the New Jersey State Bar Association. His practice is concentrated in the areas of land use applications and litigation.