Jennings v. Borough of Highlands, 418 N.J. Super. 405 (App. Div. 2011). “The right to protest zoning amendments has existed in this State for more than eighty years.” A successful protest under the Municipal Land Use Law (“MLUL”), N.J.S.A. 40:55D-63, has the effect of blocking a zoning amendment unless it receives a two-thirds majority vote in its favor instead of a simple majority. The question in this case, as Judge Harris phrased it for the Appellate Division, was “whether individual condominium unit owners may oppose zoning amendments through a protest petition” under the MLUL. A successful protest requires signatures from owners of lots or land representing “20% or more of the area either (1) of the lots or land included in such proposed [ordinance] change, or (2) of the lots or land extending 200 feet in all directions therefrom.”
Because of that language of the MLUL, and the nature of condominium ownership as defined in the Condominium Act, N.J.S.A. 46:8B-1 to -38, the Appellate Division concluded that individual unit owners could not employ the protest mechanism. As a result, a protest petition that depended for its validity on the signatures of condominium unit owners was ineffective.
To summarize a tortuous procedural history, a protest petition regarding a proposed ordinance amendment was filed. A number of the signers were individual owners of units in a condominium near the property that was the subject of the proposed ordinance. Portions of the condominium’s parking and open space were within 200 feet of the property to be developed under the proposed ordinance, but none of the condominium’s apartment units fell within 200 feet.
Judge Harris concluded that only the condominium association, not individual unit owners, could protest under the MLUL provision. This was primarily because the language of N.J.S.A. 40:55D-63, quoted above, afforded the protest mechanism only to “owners … of … lots or land.” Condominium owners are not “owners of lots or land.” Instead, they own their units and hold undivided interests in the land along with other unit owners.
Though a condominium association does not own the land either, as the panel recognized, the association’s governing body does have “the duty to preserve and protect the common elements and areas for the benefit of all its members.” For that reason, the Appellate Division conferred upon the association the rights of an owner of “lots or land” in this regard. Unit owners are not disenfranchised, Judge Harris observed, since they can still lobby the association to file a protest, vote in municipal elections, and speak out at public hearings.
“The Legislature could have written a broader provision to include part owners of a property, but elected otherwise. Tenants, mortgagees, lien holders, judgment creditors, contract purchasers, beneficiaries, and persons with future interests cannot validly execute a protest petition.” Since condominium unit owners do not own land either, “their individual signatures cannot vitalize a valid protest.”
Despite that ruling, the panel reversed the decision of the Law Division that had upheld the municipal governing body’s negative vote on the proposed ordinance. There was no evidence that the governing body had even considered recommendations of the planning board regarding that proposed ordinance, pursuant to N.J.S.A. 40:55D-26(a). The Appellate Division viewed that section of the MLUL “as imposing a mandatory duty upon a governing body to review the report of the planning board.” The governing body “gave no signs of complying with the plain language of the statute.”
Moreover, the plaintiff had also asserted that the proposed ordinance represented unlawful “spot zoning,” which has been defined as a provision “designed merely to relieve a lot or lots from the burden of a general regulation.” Judge Harris found that the Law Division had erred by resolving the spot zoning claim as a matter of law rather than permitting expert testimony on the issue.