The Legal Aspects of
a Combined Planning
and Zoning Board
By Matthew Weng, Esq.
NJLM Staff Attorney
Municipalities exercise their authority over land use through two main bodies: the planning board and the zoning board of adjustment, commonly just called the zoning board.
The planning board has exclusive authority over the master plan, subdivision control, and conditional use applications. It can also make recommendations on the official map and the zoning ordinance. Appointees to the planning board must take classes on land use law, and over time acquire an expertise that is useful to the governing body. A planning board is often referred to as a “quasi-legislative” body.
In contrast, the zoning board is often called a “quasi-
judicial” body. Many towns have zoning officers that have the power to deny permits or to issue citations for non-conforming uses. The citizens of the town have the ability to appeal to the zoning board to overturn the decision of the zoning officer. The zoning board also decides applications for variances under various sections of the Municipal Land Use Law.
In response to a movement calling for a unified body, combining the powers of both the planning board and the zoning board into one board the state legislature enacted amendments to the Municipal Land Use Law that would allow combined land use boards in certain circumstances
In response to a movement calling for a unified body, combining the powers of both the planning board and the zoning board into one board the state legislature enacted amendments to the Municipal Land Use Law that would allow combined land use boards in certain circumstances. Note that these statutes do not strictly permit the creation of a new, consolidated “land use board.” In fact, Municipal Land Use Law permits the abolition of the zoning board, and allows the planning board to exercise the powers of the zoning board. Convention still refers to these as “land use boards,” however.
N.J.S.A. 40:55D-25(c) states:
In a municipality having a population of 15,000 or less, a nine-member planning board, if so provided by ordinance, shall exercise, to the same extent and subject to the same restrictions, all the powers of a board of adjustment; but the Class I and the Class III members shall not participate in the consideration of applications for development which involve relief pursuant to subsection d. of section 57 of P.L.1975, c. 291 (C.40:55D-70).
This section, enacted because smaller towns often have trouble finding enough people to fill out a planning board and a zoning board, permits the creation of a land use board through ordinance.
N.J.S.A. 40:55D-25(c) goes on to say:
In any municipality, a nine-member planning board, if so provided by ordinance, subject to voter referendum, shall exercise, to the same extent and subject to the same restrictions, all the powers of a board of adjustment; but the Class I and the Class III members shall not participate in the consideration of applications for development which involve relief pursuant to subsection d. of section 57 of P.L.1975, c. 291 (C.40:55D-70).
This allows any size town, even a town with a population of 15,000 or less, to pass an ordinance creating a land use board. However, a town with a population greater than 15,000 must submit that ordinance to voters for approval through referendum. The referrendum is optional in municipalities with 15,000 or fewer residents.
Note that both methods prohibit both Class I and Class III members of a planning board/land use board from hearing class “d” variances. This is because denials of class “d” variances can be appealed to the governing body. A Class I member is the mayor (or the mayor’s designee) and the Class III member is a member of the governing body. Thus, both members would decide on both the initial application and the appeal, which is an inherent conflict. There is some case law indicating that no alternate members may sit in for the Class I and Class III members, meaning that class “d” variances in a land use board would be decided by seven members.
Normally a planning board has two alternates, but a combined board
Municipalities normally cite two reasons for combined their planning boards and zoning boards: efficiency and cost savings. An online survey conducted by the Rutgers Edward J. Bloustein School of Planning and Public Policy found that 12 municipalities had decided to created a combined land use board. Those towns cited the above reasons for their merger.
However, the effects of both of
these factors may be rather minor for many towns.
In the first place, even a combined board still has to hear and decide on all applications or appeals that come before it. Thus, since a land use board is in essence a planning board with zoning board powers, the planning board will be doing all the work, and still incur all the costs associated with making those decisions. A recent attempt to combine boards in the town of Wharton generated a cost savings of around $10,000. In difficult economic times, every penny counts, and for a smaller town a savings of $10,000 may be significant. However, a larger town may face a budget deficit many times this amount. It is unlikely that a combined land use board by itself will generate much savings.
As far as efficiency, the perceived benefits may not exist either, because, again, all the work still exists and the combined land use board must still issue decisions. Indeed, all the work will have to be done by less people. This could lead to less efficiency. The combined land use board further consolidates decision making into fewer hands. Thus any prejudices or obstinacy found in one or two members would be multiplied out through the entire land use process.
However, in certain circumstances, a combined board may make sense. A smaller town that has very little development, and thus not much for the planning board and zoning board to do, may actually find savings and efficiency in a combined land use board. Some towns may find that the zoning board really does not have very much to do. In those circumstances, it may make sense to abolish the zoning board and combine its powers with the planning board.
When the decision is made after thorough investigation and consideration, it may indeed be a benefit. In the towns surveyed by the Bloustein School, all the respondents accentuated the positive aspects of merger and did not identify any significant drawbacks.
First published in New Jersey
Volume 88, Number 4, April 2011