January 1, 1900

by Luis Carrillo

In 1995, Morristown obtained designation from the State Planning Commission as a regional center. As a result, Morristown has received over $2 million in state money. Last year, however, the State used this leverage to interfere with a local land use decision.

The Proposal

The Delbarton School monks, in an attempt to secure their financial future, proposed to construct a $40 million retirement community consisting of 200 apartment units, 40 one-story cottages, and space for 48 nursing home beds and 24 assisted living units on 41 acres in the Washington Valley area of Morris Township. Initially, Morristown officials, including the mayor, relished the idea of extending its sewer line to the proposed retirement community as it would generate approximately $500,000 in hookup fees and about $60,000 a year for usage. Opponents said that the result of such a development would be tremendous sprawl in an environmentally sensitive area.

The Threat

As word of the opposition spread, and in an extraordinary move, the Office of State Planning determined that approval by Morristown would violate not only the State Planning Rules, but also the policies and goals of the State Development and Redevelopment Plan. Therefore, the Office of State Planning found that such action would be sufficient to remove the regional center designation.

The Result

On September 25, 2001, in an attempt to not only secure its regional center designation but also its claim to a state planning grant of $131,000 and future state money, Morristown passed a resolution stating, in effect, that it would not extend its sewer line to service the monks' property. The grant of $131,000, withheld for more than four months, was released the very next day.

Ultimately, the State of New Jersey, through the Office of State Planning, was able to coerce Morristown into not extending its sewer line by conditioning the receipt of state funds and threatening to remove Morristown's regional center designation. This was in clear disregard and violation of the State Planning Rules and the stated goals and policies of the State Development and Redevelopment Plan (State Plan).

State Planning Rules Perverted

First, the State Planning Rules provide that "[n]either the State Development and Redevelopment Plan nor its Resource Planning and Management Map is regulatory and neither should be referenced or applied in such manner." Furthermore, "[i]t is not the purpose of this process to either validate or invalidate a specific code, ordinance, administrative rule, regulation or other instrument of plan instrumentation." The plan should only "serve as a useful guide to officials in both the public and private sectors in making planning and investment decisions." Even more compelling is the fact that, in New Jersey Builders Ass'n v. New Jersey Dept. of Environmental Protection, a case handled for the NJBA by Hill Wallack, the court recognized that the State Plan is "not a regulatory measure" and "should not be applied to the future use or intensity of use of specific parcels of land." Nevertheless, the Office of State Planning was able to use the State Planning Rules to intimidate Morristown into acting in accordance with its desires.

State Plan Itself Opposes This Outcome

The State Plan itself serves to undermine the position taken by the Office of State Planning. Its preface says that the State Plan is not to be used to "interfere with the prerogatives of governments and agencies in carrying out their responsibilities..." Furthermore, "[i]t is not appropriate to use the State Plan directly to formulate codes, ordinances, administrative rules or other regulations." Moreover, the State Plan itself envisions that "New Jersey's municipalities have extensive authority regarding planning for and regulating the use of land. The State Planning Act does not alter or limit that power." Finally, the State Plan was merely intended to provide a "context, a vision and a process within which these more specific plans can be developed and implemented to achieve commonly derived goals." Despite these clear objectives and purposes of the State Plan, the Office of State Planning was able to manipulate Morristown's ultimate vote on November 20, 2001, rejecting the monks' request for sewer services.

Conclusion

The Morristown case reveals the ways in which the State Planning Rules and the State Plan may be abused. Builders seeking to navigate their way through the perils of the land development process must add the State Plan to the list of mechanisms used by anti-growth forces and proceed accordingly.

Luis Carrillo is an associate of the firm and member of the Land Use Division. He concentrates his practice in diverse land use matters.