CHAPTER 7  MUNICIPAL LAND USE LAW & THE ROLE OF THE MUNICIPAL CLERK

 

 

The Municipal Land Use Law [N.J.S.A. 40:55D-1 et seq.] governs the planning, zoning, subdivision, and site plan powers of the municipality.

 

I.           ADMINISTRATIVE OFFICER 9/15/10; 9/15/18

 

The Municipal Land Use Law [N.J.S.A. 40:55D-1 et seq.] governs the planning, zoning, subdivision, and site plan powers of the municipality.  Municipalities possess no inherent zoning power; all authority regarding zoning and land use is exclusively derived from the authority vested in municipal government per the MLUL. 

 

Pursuant to N.J.S.A. 40:55D-3, the term “Administrative Officer” means the clerk of the municipality unless a different municipal official or officials are designated by ordinance or statute.  According to William M. Cox in his seminal book “New Jersey Land Use Zoning and Administration,” this provision cause considerable concern among clerks, who felt already overburdened.  Those concerns have been alleviated by the fact that land use procedures portions of ordinances now virtually always specify other officials, such as the secretary of the planning or zoning board of adjustment, the zoning officer, or other such officials with respect to specific duties.  Accordingly, the clerk has become largely divorced from duties relative to development applications and are now mainly confined to those imposed in connection with the enactment of ordinances or adoption of a master plan, official map, or capital improvement program.  See New Jersey Land Use Zoning and Administration, 2018, Section 2-2. 

 

 

II.          ZONING/DEVELOPMENT ORDINANCES 10/31/05; 9/15/10

 

A.         FIRST READING/INTRODUCTION

 

1.         The Governing Body prepares the draft ordinance or accepts a proposed ordinance from the Planning Board.

 

2.         The Governing Body shall read the proposed ordinance by title only at first reading. Roll call vote required with affirmative vote of a majority of the members present.

 

3.         The Governing Body sets the second reading the Public Hearing at least ten (10) days after first reading.

 

B.         REFERRAL TO PLANNING BOARD

 

1.         In municipalities having a Master Plan (the Master Plan and the Housing Element of the Master Plan are adopted by the Planning Board), the zoning ordinance or an amendment thereto must be referred to the municipal Planning Board for review. This review is based on whether the proposal is substantially consistent with the Master Plan. The Planning Board has a period of thirty-five (35) days after referral to report to the Governing Body. Failure to report within the 35-day period shall relieve the Governing Body from the requirements of this section with regard to the proposed development regulation, revision or amendment thereto referred to the Planning Board. If the Governing Body chooses to disapprove or change any recommendation made in the report, the Governing Body must act by a majority of its full authorized membership. [N.J.S.A. 40:55D-26]  9/15/14

 

2.         The Governing Body may adopt a zoning ordinance or amendment or revision thereto which in whole or part is inconsistent with or not designed to effectuate the land use plan element and the housing plan element, but only by affirmative vote of a majority of the full authorized membership of the Governing Body, with the reasons of the Governing Body for so acting set forth in a resolution and recorded in its minutes when adopting such a zoning ordinance or amendment. [N.J.S.A. 40:55D-62] 9/15/19

 

C.         LEGAL ADVERTISING

 

1.         The Municipal Clerk publishes the proposed ordinance in the legal newspaper of the municipality at least ten (10) days prior to the scheduled hearing date.

 

2.         When calculating advertising date, the date of publication is not counted, and the date of hearing is counted.

 

3.         Pursuant to N.J.S.A. 40:49-2.1: In the case of any ordinance adopted pursuant to the “Municipal Land Use Law,” P.L.1975, c. 291 (N.J.S.A. 40:55D-1 et seq.), including any amendments or supplements thereto, or revisions or codifications thereof, which is in length six (6) or more octavo pages of ordinary print, the Governing Body of any municipality may, notwithstanding the provisions of N.J.S.A. 40:49-2, satisfy the newspaper publication requirements for the introduction and passage of such ordinance in the following manner:

 

a.         The publication of a notice citing such proposed ordinance by title, giving a brief summary of the main objectives or provisions of the ordinance, stating that copies are on file for public examination and acquisition at the office of the Municipal Clerk, and setting forth the time and place for the further consideration of the proposed ordinance;

 

b.         The placing on file, in the office of the Clerk, three (3) copies of the proposed ordinance, which copies shall be available for public inspection until final action is taken on said ordinance; and

 

c.         The publication or arranging for the publication of the proposed ordinance in pamphlet or other similar form, which may be sold by the municipality at a price not to exceed the cost of publication and distribution.

 

            If any amendment be adopted to any such proposed ordinance substantially altering the substance of the proposed ordinance, there shall be caused to be published a notice of the title of the ordinance, the introduction and time and place that the amended ordinance will be further considered and a summary of the objectives or provisions of the amendment or amendments, which notice shall be published at least two (2) days prior to the time so fixed therefor in accordance with subsection c. of N.J.S.A.  40:49-2. Copies of the amended ordinance shall be on file and available for public examination and duplication, in the office of the Municipal Clerk, until final action is taken on said ordinance. If said ordinance is again amended, the same publication requirements herein set forth for amended ordinances shall be followed.

 

            Upon passage of any such ordinance, notice of passage or approval shall be published in accordance with subsection d. of N.J.S.A. 40:49-2.  A copy of the ordinance and of any summary or summaries published in connection with its adoption pursuant to subsection a. or c. of this section above shall be forthwith transmitted to the tax assessor of the municipality.

            (7/21/11; N.J.S.A. 40:49-2.1)

 

            NOTE: Weigh costs for Municipal Attorney to prepare ordinance summary against the publication cost for the ordinance published in full.

 

D.         NOTICES [N.J.S.A. 40:55D-15]

 

1.         Notice by personal service, certified mail, or e-mail with confirmation that the e-mail was delivered, shall be made to the clerk(s) of an adjoining municipality of all hearings on the adoption, revision or amendment of a development regulation involving property situated within 200 feet of such adjoin municipality at least 10 days prior to the date of such hearing. Include copy of proposed development regulation.  9/15/16

 

2.         Notice by personal service, certified mail, or e-mail with confirmation that the e-mail was delivered, shall be made to the county planning board of (1) all hearings on the adoption, revision, or amendment of any development regulation as least ten days prior to the date of the hearing, and (2) the adoption, revision, amendment of the municipal capital improvement program or municipal official map not more than 30 days after the date of such adoption, revision or amendment.  Any notice provided hereunder shall include a copy of the proposed development regulation, the municipal official map or the municipal capital program, or any proposed revision or amendment thereto, as the case may be.  9/15/16

 

3.         Notice of hearing to be held pursuant to this section shall state the date, time and place of the hearing and the nature of the matters to be considered.  Any notice by certified mail or e-mail pursuant to this section shall be deemed complete upon mailing or when e-mailing upon confirmation that the e-mail was delivered as appropriate.  9/15/16

 

            For the purposes of this section, proof that an e-mail was sent to the correct e-mail address within the required time frame shall constitute a rebuttable presumption of confirmation that the e-mail was delivered.  9/15/16

 

E.         ZONING DISTRICT CLASSIFICATION OR BOUNDARY CHANGE—NOTICE

 

            In addition to the notice requirements in "D" above:

 

1.         Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the Master Plan by the Planning Board, shall be given at least ten (10) days prior to the hearing by the Municipal Clerk to the owners of all real property as shown on the current tax duplicates who are, located, in the case of a classification change, within the district and within the State within two hundred (200') feet in all directions of the boundaries of the district, and located, in the case of a boundary change, in the State within two hundred (200') feet in all directions of the proposed new boundaries of the district which is the subject of the hearing. [N.J.S.A. 40:55D- 62.1]. If this provision involves municipalities outside your boundaries, certified lists of property owners must be obtained from the Tax Assessor or other Administrative Officer in the adjoining municipality for use in giving notice to property owners.  9/15/18

 

2.         See N.J.S.A. 40:55D-62.1 for notice requirements to any military facility commander is the facility is located in the district or within three thousand (3,000') feet of the district.

 

3.         Notice shall state the date, time and place of the hearing, the nature of the matter to be considered, and an identification of the affected zoning districts and proposed boundary changes, if any by street names, common names or other identifiable landmarks, and by reference to lot and block numbers shown on the current tax duplicate in the municipal Tax Assessor's office.

 

4.         Notice shall be given by (1) personal service or (2) certified mail and regular mail to the owners of all real property as shown on the current tax duplicate.

 

5.         See N.J.S.A. 40:55D-62.1 for notice requirements to partnerships, corporations, condominium associations, horizontal property regimes, community trusts, or homeowners' associations in addition to notice to unit/home owners.

 

F.         ORDINANCE POSTING

 

1.         Post the proposed ordinance on the public bulletin board or whatever area is designated for the posting of public notices.

 

2.         Provide copies to the public upon request. Fee for copies may be charged pursuant to municipal policy.

 

G.         AFFIDAVITS/INTRODUCTION

 

1.         The Municipal Clerk prepares a notarized Affidavit of Proof of Publication of the notice of the required public hearing on the proposed zoning ordinance change in the legal newspaper of the municipality or obtains a notarized Affidavit of Proof of Publication from the newspaper.

 

2.         The Municipal Clerk shall execute an Affidavit of Proof of Service of the notices required by subsection D (and subsection E if applicable) and shall keep the Affidavit on file along with the Affidavit of Proof of Publication.

 

3.         The Municipal Clerk attaches the white certified mail receipts to the Affidavit of Proof of Service. The green return receipt post cards do not need to be received to prove service has been made, but retain the post cards returned to the municipality.

 

4.         The costs of the notice provision shall be the responsibility of the proponent of the amendment.

 

H.         AMENDMENT OF ORDINANCE PRIOR TO FINAL ADOPTION [N.J.S.A. 40:49-2c] 

 

If there is any amendment to the published ordinance which substantially alters the substance of the ordinance:

 

1.         Ordinance as amended must be read by title at the previously scheduled hearing date, amended by resolution setting forth the amendment.

 

2.         The ordinance as amended must be published with a notice of introduction and including the time and place when the ordinance as amended will be further considered, which consideration (hearing) must be at least one (1) week thereafter.

 

3.         Publication must be at least two (2) days prior to the hearing date of the amended ordinance.

 

4.         An amendment to a Zoning/Development ordinance that is six (6) or more pages does not need not be advertised in full, but notice by title and summary of contents, along with hearing date, time and place may be published. When such option is utilized, three (3) copies of the full document must be on file with the Municipal Clerk and available for public inspection. Copies in pamphlet or similar form must be available for sale to the public at a price not to exceed the cost of publication and distribution.

 

I.          PUBLIC HEARING 

 

1.         A the second reading and public hearing, the proposed ordinance is read by title if it was properly posted. Read the ordinance in full if not properly posted. [N.J.S.A. 40:49-2c]

 

2.         The Affidavit of Proof of Publication and Affidavit of Service of Notice are reviewed by the Municipal Attorney and approved for filing.

 

3.         The public hearing is opened for public discussion on the ordinance by voice vote of the Governing Body. Public comment is received. The names and addresses of speakers and an indication of their views, whether for or against ordinance, are noted in the minutes. The public hearing on the ordinance is closed by voice vote of the Governing Body.

 

4.         The hearing can be adjourned to another specified date and time by announcement without publication of ordinance or notice. [N.J.S.A. 40:49-2b]

 

5.         The recommendation from the Planning Board is reviewed and approved for filing.

 

J.          FINAL ADOPTION 

 

1.         Final adoption must be at least ten (10) days after first reading by roll call vote;

 

2.         Required vote to adopt:

 

a.         Affirmative vote of majority of the Governing Body present in most municipalities - affirmative vote of majority of the full authorized membership of the Governing Body in Faulkner Act municipalities.

 

b.         Two-thirds (2/3) majority of the full authorized membership of the Governing Body if any of the following occurs during the process for adoption of a zoning ordinance or amendment:

 

(1)        Thirty-five (35) days have elapsed and the recommendation from the Planning Board has not been received; or

 

(2)        The Planning Board finds that the ordinance is not consistent with the Master Plan or not designed to effectuate the land use plan and housing plan element of the Master Plan; or  

 

 (3)       A petition signed by the property owners of twenty percent (20%) of the area affected by a proposed zone change or the property owners of twenty percent (20%) zone change is filed with the Municipal Clerk.

 

3.         Notice of Final Adoption must be published in the municipality's official newspaper within ten (10) days of adoption.  The Municipal Clerk prepares a notarized Affidavit of Publication in legal newspaper of the municipality or obtains a notarized Affidavit of Proof of Publication from the newspaper.

 

K.         EFFECTIVE DATE.

 

1.         The effective date depends on municipality's form of government:

 

a.         Upon publication of the notice of final adoption in most municipalities but twenty (20) days after adoption (assuming notice of final adoption was published as required above) in Faulkner Act Municipalities. [N.J.S.A. 40:69A-181b]

 

b.         After signature by Mayor if required by municipality's form of government.

 

c.         In Faulkner Act municipalities, the twenty (20) day waiting period for ordinance effectiveness (except bond/assessment ordinances) can be waived by resolution of the Governing Body by declaring the situation an "emergency" [N.J.S.A. 40:69A-181b].  Resolution declaring an emergency requires the affirmative vote of two-thirds (2/3) of the full authorized membership of the Governing Body.

 

2.         A certified copy must be filed with the County Planning Board within thirty (30) days of adoption.  The ordinance not effective until filed with the County Planning Board. Send by personal service or certified mail. Retail proof of mailing and green post card receipt.

 

3.         A copy of the ordinance must be filed with Municipal Tax Assessor.

 

4.         The Municipal Clerk sends a notice of adoption to the Planning Board, Board of Adjustment, Zoning Officer, Municipal Attorney, Municipal Court, and anyone else on usual municipal circulation list.

 

 

 

EXHIBIT

ORDINANCE ACTIVITY CHART 9/15/10

 

 

ORDINANCE TYPE

ZONING/DEVELOPMENT

INTRODUCTION

In writing, read by title, introduce by motion, requires affirmative vote of a majority of members present

 

 

LEGAL ADVERTISING

Publish at least 10 days before hearing. If more than 6 pages long, consider publishing by title and summary

 

 

OTHER NOTICES AND POSTING

Refer to Municipal Planning Board; Post on bulletin board; Notice to adjoining municipalities and County Planning Board at least 10 days before hearing by certified mail, personal service or e-mail; Copies for public at municipal fee.  9/15/16

 

 

CHANGE IN CLASSIFICATION OR BOUNDARIES OF A ZONING DISTRICT (EXCEPT WHEN RECOMMENDED IN PERIODIC GENERAL MASTER PLAN REVIEW BY PLANNING BOARD)

Notice to property owners within zone and within 200 feet by certified mail and regular mail; notice to military commander if required

AFFIDAVITS

Affidavit of Publication; Affidavit of Service of Notice

 

 

AMEND PRIOR TO HEARING

Read by title amended by Resolution; Consider at least 1 week later; Publish at least two days prior to hearing

 

 

SUPPLEMENTS TO HEARING

Planning Board report, if provided; Affidavits of Publication and Service

 

 

FINAL ADOPTION

At least 10 days after introduction. Affirmative vote of majority members Present EXCEPT Faulkner municipalities that require an affirmative vote of majority of full membership. Upon signature of Mayor if required by form of government

 

 

SPECIAL PROCEDURES FOR LACK OF PLANNING BOARD APPROVAL OR FILING OF PETITION

2/3 vote of full membership

 

 

NOTICE OF FINAL ADOPTION

Publish Notice of Final Adoption

 

 

AFFIDAVIT

Affidavit of Publication

 

 

EFFECTIVE DATE

Upon publication of Notice of Final Adoption. If Faulkner municipality, 20 days after adoption unless emergency declared.

 

 

AFTER ADOPTION

File with County Planning Board by certified mail or personal service within 30 days; Copy Tax Assessor and municipal staff

 

 

 

EXHIBIT

SAMPLE NOTICES FOR PUBLICATION OF ORDINANCES  9/15/10

 

HEARING NOTICE:

 

The foregoing (or following depending on whether this notice appears above or below the ordinance) Ordinance was introduced at a Regular/Special Meeting of the (insert name of Governing Body) of the (insert name of municipality) held on (insert date) and was read for the first time. This ordinance will be further considered for final passage by the said (insert name of Governing Body) at the (insert place/address of hearing location) at a meeting beginning at (insert time) p.m. to be held on (insert date) or at any time and place to which such meeting may be adjourned. All persons interested will be given the opportunity to be heard concerning such ordinance. Copies of this Ordinance are available at the (insert name and address of the Municipality/Municipal Building). Signed by (insert name of Municipal Clerk).

 

 

NOTICE OF FINAL ADOPTION:

 

Ordinance No. ---/Title of Ordinance.

 

Notice is hereby given that the foregoing ordinance was approved for final adoption by the (insert name of Governing Body) of the (insert name of municipality) at a Regular/Special Meeting held on (insert date). Signed by (insert name of Municipal Clerk).

 

 

 

CHAPTER 7 MUNICIPAL LAND USE LAW & THE ROLE OF THE MUNICIPAL CLERK
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