The average person is probably unaware there are two kinds of court opinions: published and unpublished.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Unpublished decisions do not have the force of precedent and a trial court need not follow the opinion, even if it is from the Appellate Division. Also, the Court Rules prohibit any court from citing to or using an unpublished decision as precedent.
But can a zoning or planning board ignore an unpublished decision? Even though the unpublished decision is not precedential and cannot be cited by a court if the issue is litigated, most board attorneys would advise their boards that they are bound to follow an unpublished decision based on the same or very similar facts. An unpublished decision often will provide the exact analysis needed to properly decide a legal issue that has arisen during an application.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 If there is an unpublished decision on the same notice issue, it should be followed by the board.
We have often utilized unpublished decisions to support our position during board hearings.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.