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Legal Q & A



Deborah M. Kole, League Staff Attorney
Deborah M. Kole
League Staff Attorney

Marriage and Civil Union Ceremonies
and Rezoning

Q Our newly-elected mayor wants to perform marriages, but not civil union ceremonies. The mayor in the next town does both, and our mayor would direct anyone wishing a civil union ceremony to go to her. May he do this? Also, our new municipal judge would like to perform both types of ceremonies. We have a fee ordinance that disburses the fee received by the municipality for wedding and civil union ceremonies to the mayor. Can we add the municipal judge to this fee ordinance too?

A The answer to both of your questions is no. On December 21, 2006, the Attorney General issued an opinion saying that, while it is not required that mayors and other officials allowed to perform marriages actually do so, any such official who elects to be available generally to solemnize marriages must also be available generally to solemnize civil unions. A mayor or other official who performs marriages but does not solemnize civil unions when asked to will be violating the New Jersey Law Against Discrimination (LAD), and the Attorney General can seek judicial relief to ensure the official complies with the LAD.

As for adding the municipal judge to the fees ordinance, judges are not allowed to accept fees for performing wedding or civil union ceremonies, and therefore should definitely not be included in the ordinance.

Q I own a large piece of property located in a commercial zone in my municipality. The commercial zone borders on a residential zone, but my parcel is surrounded by commercial property. I recently submitted a site plan to the planning board for the development of a retail center on this property. However, at a municipal council meeting a short time later, a group of residents urged the Council to rezone my property so that only professional offices could be built on it. The matter was referred to the planning board. The board unanimously voted for the change, and the municipal council later proposed and passed an ordinance rezoning my property, and a resolution setting forth the reasons for the change. Although the municipal planner was in favor of the rezoning, no expert testimony was taken to support the change. Can they make this change based on the testimony and concerns of residents?

 

A In a recent case, the Appellate Division has ruled that, under appropriate circumstances, a municipality can indeed rezone in this situation. In Riya Finnegan, LLC.v. South Brunswick, 394 N.J.Super. 303 (2007), property was rezoned from commercial to professional office in response to an application for development of a retail center. The ordinance rezoning the property was also accompanied by a resolution of the municipal council acknowledging that the rezoning was inconsistent with the Master Plan of the community, but stating that the rezoning “will advance the general welfare… because it is more in keeping with the general comprehensive plan of this area…as a transition area from intense use to residential use.” The resolution also expressed the Council’s agreement with the concerns of residents about increased traffic and other overdevelopment problems. The applicant challenged the rezoning in court.

At trial, the court heard testimony of two planners, one supporting the position of each party. The court ruled for the plaintiff/applicant, finding the rezoning to be arbitrary and capricious because the municipal council heard no expert testimony in the matter, and also found that the actions of the council amounted to inverse spot zoning. However, the Appellate Division reversed, stating that the trial court used the wrong standard of review in analyzing the validity of the rezoning ordinance.

The Court pointed out that in rezoning, unlike the quasi-judicial function of a Board of Adjustment granting a variance, the council “…was performing a purely legislative function. In this context, (it) is entitled, as a duly elected policy-making body, to rely on the sentiments of its constituency to formulate municipal policy, including zoning regulations.” Therefore, the council could rely on residents’ testimony to justify rezoning, and did not need to include expert testimony in its consideration.

The Court also reversed the finding of inverse spot zoning, because it was “…principally based on the Township’s reliance on lay opinions to support its conclusion that the zone change furthered the comprehensive plan of the municipality,” a reliance that the Appellate Division found entirely proper.

Furthermore, intensive development in the commercial zone since the filing of the Master Plan in 2001, along with the large size of this property compared with other parcels in the zone, supported the rationality of the rezoning and argued against its characterization as inverse spot zoning.

This column is for informational purposes only, and is not intended as legal advice.

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