(908)402-4770The Municipal Land Use Law (MLUL) authorizes municipalities to regulate land use by adopting zoning ordinances and ordinances requiring subdivision and site plan approval. Before doing so, however, the municipality must create a planning board. The MLUL divides the membership of the planning board into classes, which include the mayor (Class I), a member of the governing body (Class III) and another municipal official (Class II). Some municipalities choose as the Class II member an official directly involved in the land use approval process, such as the municipal engineer or planner. A recent Appellate Division decision, while not questioning the legality of such arrangements, casts doubt on their practical utility.
In Sternas v. DMH2, LLC (A-2051-16T4 February 4, 2019), the Appellate Division reversed the Law Division judgment upholding the grant of site plan approval by the Verona Planning Board where the municipal engineer, the Class II planning board member, had ex parte communications with the applicant and its engineer. The municipal engineer stated during the hearing process that these communications involved only direction to the applicant as to what forms and mapping had to be submitted and he refused to recuse himself. An objector appealed from the planning board’s approval of the application (which was on a 5-4 vote with the engineer as the deciding vote).
The Appellate Division recognized the requirement that a municipal official must be a member of the planning board and in his municipal official capacity “may become involved in the processing of certain applications that may be heard by the Board. Nonetheless, ex parte conversations between a Class II member and an applicant or its representative must be avoided. Recusal of a Class II member is required if there is evidence such member and an applicant discussed the merits of a particular application ex parte.” Thus, the Appellate Division reversed the Law Division’s affirmance of the approval and remanded for an evidentiary hearing on the nature of the contacts between the applicant and the municipal engineer.
Because the municipal engineer will usually provide advice to the planning board in its review of the application and the engineer often has to work directly with the applicant’s professionals to see that his review comments are properly addressed the Appellate Division’s complete prohibition on substantive communications between the Class II member and the applicant could be viewed as, in practical effect, a bar to the appointment of the municipal engineer as the Class II member.