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Land Use Boards and the Unpublished Opinion

The average person is probably unaware there are two kinds of court opinions:  published and unpublished.  A committee of judges and attorneys determine whether an opinion will be “published,” and thus constitute precedent in New Jersey.  All lower courts are bound by published decisions of any higher court.  And every New Jersey court must follow New Jersey Supreme Court opinions, all of which are published.

Unpublished decisions do not have the force of precedent and a trial court need not follow the opinion, even if it is from the Appellate Division.  Also, the Court Rules prohibit any court from citing to or using an unpublished decision as precedent.

But can a zoning or planning board ignore an unpublished decision?  Even though the unpublished decision is not precedential and cannot be cited by a court if the issue is litigated, most board attorneys would advise their boards that they are bound to follow an unpublished decision based on the same or very similar facts.  An unpublished decision often will provide the exact analysis needed to properly decide a legal issue that has arisen during an application.  And even though it need not be followed by another court, it is a statement of a court’s opinion on what the law is on the particular issue considered, and should guide a land-use board in deciding the same or a similar issue that may be raised in an application.

For example, a planning or zoning board may be asked to decide a legal question raised during an application, as with an objector challenging the developer’s notice.  The board must analyze the Municipal Land Use Law—the controlling state statute—to determine if the notice is valid permitting the board to proceed.  If the notice were defective, the board would have no jurisdiction to hear the matter. If there is an unpublished decision on the same notice issue, it should be followed by the board.

We have often utilized unpublished decisions to support our position during board hearings.  They are a valuable tool in convincing the board of the correctness of our point of view.

White Castle Systems v. Planning Board of Middletown

A recent decision by the Appellate Division is sure to bring shivers to any developer’s attorney.  In White Castle Systems, Inc. v. Planning Board of the Township of Middletown, A-3938-12, the court reinstated the denial of a variance-free application because the applicant failed to satisfy the proofs for an exception pursuant to N.J.S.A. 40:55D-51.  There are few if any decisions interpreting the statute and analyzing the proofs required for an exception, so even though this case is unpublished, it is worthy of attention.

The applicant, White Castle sought to develop a fast-food restaurant in Middletown’s B-3 Zone, which was a conditionally permitted use in the zone.  The plan complied with the conditions of the use and all of the other bulk requirements in the B-3 Zone, so it needed no variances.  However, because the property was bordered by residential uses (which are prohibited in the B-3 Zone), Middletown’s site design ordinance required a 50-foot landscaped buffer between the parking lot and the residential uses.  Instead of the 50-foot buffer, the applicant proposed as little as 8.5 feet in places, and indicated that it intended to install a 6-foot high vinyl privacy fence at the property line to screen the parking from the adjacent non-conforming uses.

During the hearings, the applicant’s engineer/planner testified that compliance with the 50-foot buffer requirement would “render [the property] into inutilty in that the applicant would not be able to develop a commercial site on the property . . .”  However, the witness conceded that a part of the parking area could be moved to a location on the property that was less desirable, and the applicant refused to make that change because it would be inconvenient for its customers.  Based on that testimony, the Board decided that it preferred to inconvenience the customers of the White Castle rather than the property owners and denied the application.

After the Law Division reversed the board’s denial, the Appellate Division reversed and reinstated the decision.  The court examined the definition of the statutory term impractical and determined that the applicant’s decision not to comply with the buffer requirement “was not ‘impractical’ from a zoning perspective . . .[instead, the] concerns are therefore grounded on practical economic considerations.”  It therefore found that the board’s denial of the exception was reasonable and justified in light of the testimony and evidence presented.

Based on this decision, it is clear that a developer seeking an exception must show that complying with the requirement is unwise or imprudent, or will render development impossible.  This essentially mirrors the requirement for a hardship variance under N.J.S.A. 40:55D-70(c)(1).  Unlike variances, however, there is no ability to demonstrate that an exception from a site plan design requirement would result in a better plan than a conforming development (i.e., a “flexible” variance under N.J.S.A. 40:55D-70(c)(2)).  While there is no negative criteria requirement for exceptions, an exception must still be within the general intent and purposes of the site plan ordinance.  Because of the statutorily-constrained proofs, it is conceivable that an applicant would have more difficulty obtaining an exception than a variance.  Care needs to be taken that any proofs in furtherance of the exception focus on why compliance with the requirement is not appropriate rather than simply not advisable or desirable, otherwise a board that is hostile to a proposed development plan could still deny the application even though it is variance free.