Municipal Land Use Law

N.J.S.A. 40:55D-1 et. seq.

NEW JERSEY PROFESSIONAL PLANNER EXAM

REVIEW
JANUARY 30, 2021
P R E PA R E D B Y J O H N B A R R E E , P P, A I C P
 UNDERSTANDING THE MLUL

 Adopted in 1975 (Chapter 291, Laws of NJ 1975),

effective August 1, 1976
 What do the numbers mean?
 N.J.S.A. = “New Jersey Statutes Annotated”
 Title 40 “Municipalities and Counties”
 Section 55D “Municipal Land Use Law”
 Within Section 55D there are 19 Articles and numerous sub-sections.
 Some sections of the MLUL reference numbers from the original Act, not the
current section numbers in the Statute - be aware
 The Municipal Land Use Law is enabling legislation that allows
municipalities to adopt ordinances (laws) to regulate land use in a
manner consistent with the State law.
 For the Test – Everything in the MLUL is fair game. The Law is
revised frequently, sometimes multiple times per year. The most
recent revisions will not be on the test.
 GENERAL THINGS TO REMEMBER

 Pay attention to the language – shall vs. may is an

important distinction.
 Shall means something must be done. A Board or a Municipality, etc. must
do something by law.
 May means something is optional.
 Remember who does what – Planning Board? Zoning
Board? Governing Body?
 Break the law down into pieces, there is a lot of material.
Focus on the big concepts to get a handle on the
organization, then add the details later.
 PURPOSES OF THE ACT (SECTION 2)

 Seventeen purposes of the Municipal Land Use

Law – keep these in mind
 a. Public health, safety, morals, and general
welfare (the basic overriding purpose of the law)

DEFINITIONS (SECTION 3-7)

 Keep these in mind in practice and for the Test

 THE PLANNING BOARD (ARTICLE 2)

 Membership (Section 23)

 Seven or Nine Members (Ordinance determines)
 Class I – Mayor or Designee (Duration of term)
 Class II – A municipal official other than a member of the
governing body (1 Year)
 Class III – A member of the governing body (1 Year)
 Class IV – Citizens (4 Years)
 Alternate Members (2 or 4)
 Organization
 Chair / Vice-Chair (Must be Class IV Members)
 THE PLANNING BOARD (ARTICLE 2)

 Powers (Section 25)

 Master Plan (Adopted by PB)
 Subdivision and Site Plan Application Review
 Official Map Review (Adopted by the Governing Body,
referred to PB – see section 32)
 Zoning Ordinance (Adopted by the Governing Body,
referred to PB)
 Capital Improvement Program (Prepared by PB, Adopted by
the Governing Body – see section 29)
 Variances (“C” only – In conjunction with a site plan or
subdivision application)
 “Planning Variances” in conjunction with a site plan or
subdivision application
 THE ZONING BOARD OF ADJUSTMENT
(ARTICLE 9)
 Membership (Section 69)
 Seven Regular Members
 All citizens of the municipality that do not hold other office
or position
 4 year terms
 Alternate Members (up to 4)
 2 year terms
 Organization
 Chair / Vice-Chair (Must be Class IV Members)
 THE ZONING BOARD OF ADJUSTMENT
(ARTICLE 9)
 Powers (70)
 Applications
a. Hear appeals of administrative officer decision
b. Hear requests for interpretation of the zoning map or zoning
ordinance
c. Variances related to bulk and non-use zoning standards
d. Variances related to use and several specific categories
 Review site plan or subdivision applications in conjunction
with “d” (40:55D-70.d) variances
 “Planning Variances”
 Allow building in a mapped road or public drainage way, flood
control basin or public area (see Official Map section 34)
 Allow building on a lot without street frontage (see Official Map
section 35)
 VARIANCES

 C Variances (40:55D-70.c)
 Bulk standards – 2 types of justification
 C(1) – hardship
 C(2) – benefits vs. detriments balance
 Planning Board if in conjunction with a site plan or subdivision
application
 Zoning Board for 1- or 2-family houses (specifically exempt from site
plan approval in the MLUL)
 D Variances (40:55D-70.d)
 Zoning Board Only (Can have site plan and subdivision too)
 5 affirmative votes required (does not matter how many members
present)
 6 types – (1) use, (2) expansion of non-conforming use, (3) conditional
use, (4) FAR, (5) density, (6) height greater than 10 feet or 10%
 Decision Time – 120 Days for all variances / appeals
 VARIANCES

Application Type Board

One- or Two-Family Dwelling with “c” bulk

Zoning Board of Adjustment
variance(s)

Site plan or subdivision with no variances Planning Board

Site plan or subdivision with “c” bulk variance(s) Planning Board

Application for “d” use variance only Zoning Board of Adjustment

Application for “d” use variance with site plan or

Zoning Board of Adjustment
subdivision approval
Application for conditional use approval
Planning Board
(conditions met)
Application for conditional use approval
Zoning Board of Adjustment
(conditions not met – d(3) variance)
 COMBINED PLANNING / ZONING BOARD

 9 Member Board may serve as both planning and

zoning board
 Class I (Mayor) and Class III (Governing Body)
Members do not participate in “d” variance
applications
 May be created by Ordinance if population is 15,000 or
less
 May be created by referendum in any size town
 HIERARCHY

 The Master Plan (Article 3 - Section 28)

 Master Plan Reexamination (Article 12 - Section 89)
 Capital Improvements Program (Article 4 – Section 29)
 The Official Map (Article 5 – Section 32-36)
 Zoning (Article 8 – Sections 62-68)
 Subdivisions and Site Plans (Article 7 – Sections 37-59)
 General Development Plans / Planned Development
 THE MASTER PLAN (28)

 Contents of the Master Plan

 Planning Board may adopt
 Required Elements (look at “shall”…)
 (1) Statement of objectives…
 (2) Land Use – Many required pieces, some recently added
 (3) Housing – This one is tricky…
 Optional Elements
 (4) Circulation  (11) Appendices / Technical
 (5) Utility Service Reports
 (6) Community Facilities  (12) Recycling
 (7) Recreation  (13) Farmland Preservation
 (8) Conservation  (14) Development Transfer
 (9) Economic  (15) Educational Facilities
 (10) Historic Preservation  (16) Green Buildings and
Environmental Sustainability
 MASTER PLAN REEXAMINATION (89)

 Required every 10 years

 Contents – See MLUL for full text
a. Major problems and Objectives at time of last report
b. How those problems have been addressed, increased, changed.
c. What has changed to influence assumptions, policies and objectives that
support the Master Plan and Zoning Ordinance? Typically look at
demographics, major developments, changes to State / Federal laws, major
economic trends, etc.
d. Specific recommendations for changes to the Master Plan or Zoning
Ordinance.
e. Review of designated redevelopment areas and recommendations for
changes or new areas for study.
f. Identification of EV Charging options.
 Rebuttable presumption – If you don’t adopt a Reexam in a timely
manner, your ordinances may be challenged as unreasonable.
 ZONING (62)

 Powers to Zone (62)

 Governing Body may adopt a zoning ordinance
 Pre-requisite – Adoption of a Master Plan with a Land Use
Element and a Housing Element
 Zoning Ordinances shall be consistent with the Land Use and
Housing Elements
 Shall consider the character of uses, and encourage most
appropriate use of land
 Shall be uniform within the district, may differ from other
districts.
 Shall provide for airport safety zones
 Shall provide for regulation of land adjacent to State highways
 ZONING (62)

 Contents of Zoning Ordinance (65) “may”

 Regulate buildings and uses
 Regulate bulk – height, orientation, size, setbacks, etc.
 Provide districts for planned developments
 Establish performance standards / design standards
 Designate and regulate areas subject to flooding
 Provide for conditional uses
 Provide for senior citizen community housing
 Require that taxes are up to date prior to approval
 Provide for historic preservation
 Provide for sending and receiving zones for transfer of development rights
(TDR)
 Provide for cluster development
 Provide for non-contiguous cluster development
 ZONING (62)

 Historic Sites and Districts (65.1)

 Zoning Ordinance can designate and regulated historic sites
and districts
 Must be identified in the Historic Preservation Master Plan
Element
 Conditional Uses (67)
 Some uses may be “conditional” where they are permitted only
if a set of specific standards are met
 Non-Conforming Uses (68)
 Uses that legally exist, but are the prohibited by a new
Ordinance (“Grandfathered uses”)
 Use may continue, may change hands, may be paused – it is
lost if it is abandoned or destroyed, needs a variance to expand
 ZONING (62)

 Miscellaneous (66 – 66.16)

 Can’t differentiate between public and private schools
 Group homes / Community Residences (several different
protected classes) are considered single family homes for
zoning
 Family day care homes are permitted in all residential zones
 Childcare centers are permitted in all non-residential zones
 Exceptions for groundwater remediation activity
 Methadone clinics are considered businesses, not doctors
offices.
 Wind and solar facilities are permitted in industrial zones on
large lots
 SUBDIVISION AND SITE PLAN (37)

 Grant of power (37)

 Governing body may require approval of subdivision and site
plans.
 One- and two- family residential is exempt from site plan
review
 Contents of Ordinance (38)
 If an ordinance is adopted, it shall include:
 Application procedures (38.a)
 15 provisions about site / subdivision layout, access, etc. (38.b)
 Standards for grading, improvements, construction standards, etc.
(38.c)
 Require conformance with zoning ordinance (39.d)
 Ensure that what gets built is the same as the approved plans (39.e)
 SUBDIVISION AND SITE PLAN (37)

 Discretionary Contents (39) “may” include

 Off-tract improvements
 Planned development / cluster development
 Phasing
 Billboard standards
 Site Plan Specific Standards (41)
 Shall include (in addition to the contents in 38 & 39)
 Preservation of natural resources
 Circulation, parking, and loading
 Screening, landscaping, and location of structures
 Lighting
 Conservation of energy and renewable energy
 Recycling
 SUBDIVISION AND SITE PLAN – TYPES OF
APPROVAL (46-)
 Minor Site Plan (46.1)
 MLUL Definition
 Local latitude to define the scope of development
 May waive notice requirements (specified in ordinance) if no
variances needed
 Decision Time = 45 Days
 Approval protected for 2 years, may extend for 1 year
 SUBDIVISION AND SITE PLAN – TYPES OF
APPROVAL (46-)

 Minor Subdivision (47)

 MLUL Definition
 Local latitude to define the number of lots
 May waive notice requirements (specified in ordinance) if no
variances needed
 Decision Time = 45 Days
 Approval good for 190 days (must be filed / recorded /
perfected with County)
 Board may extend up to 1 year
 SUBDIVISION AND SITE PLAN – TYPES OF
APPROVAL (46-)

 Preliminary Major Site Plan / Subdivision (46)

 10 acres or less, 10 units or less = 45 days for decision
 >10 acres or 10 units = 95 days for decision
 Provides protection from changes in zoning for 3 years, (2) 1-
year extensions possible
 Ordinances may have fewer requirements for “preliminary”
approval
 Typically performance guarantees are not required until final
approval
 Often used for longer-term, larger projects or with uncertain
development conditions
 SUBDIVISION AND SITE PLAN – TYPES OF
APPROVAL (46)
 Final Major Site Plan / Subdivision (46)
 Approval is good for 2 years, (3) 1-year extensions possible
 Plans must comply with conditions of preliminary approval
with minimal deviations
 Decision Time = 45 Days
 No notice required
 Simultaneous review of preliminary and final is
permitted and is common.
 SUBDIVISION AND SITE PLAN – TYPES OF
APPROVAL (46)

 Approval caveat for large applications

 Planned Development of 50+ Acres
 Conventional Site Plan / Subdivision of 150+ acres
 Site Plan of 200,000 sf+ non-residential floor area
 Board may grant preliminary approval for longer than 3 years
and final approval for longer than 2 years.
 Board may grant additional extensions
 Planned Development / GDP (45)
 Ordinance may specify requirements
 Large developments, mix of uses, designate areas for specific
uses as a general plan, return later for site plan approvals
 20 year period of protection for General Development Plans
 HISTORIC PRESERVATION COMMISSION
(SECTION 107)
 Governing Body may adopt an ordinance creating an
HPC
 Membership – 5, 7, or 9 Members
 Class A – “person who is knowledgeable in building design and construction or architectural
history and who may reside outside the municipality”
 Class B – “person who is knowledgeable or with a demonstrated interest in local history and
who may reside outside the municipality”
 Class C – Citizens of the municipality (not elected officials or employees)
 A + B Members = 1 less than majority
 Up to 2 alternates (Class C)
 Responsibilities (109)
 Applications (110) – Planning Board / ZBA refers applications in historic
district or historic sites to HPC, provides advisory report
 Permits (111) – If the Zoning Ordinance designates historic sites / districts,
the governing body shall provide for referral of permits to the HPC (these are
permit reviews outside the scope of Board applications)
 MISCELLANEOUS

 Hearings (10)
 Notice (11-15) – 10 days prior to hearing
 Performance / Maintenance Guarantees (53)
 Escrow for Professional Reviews (53.2)
 LEFTOVERS

 Joint Boards / Regional Boards (Section 77)

 Dismal Swamp (Section 88.1)
 Stormwater Management (Section 93)
 Affordable Housing Act (Section 100)
 Burlington County TDR (Section 113)
 Permit Extension Act (Section 130)
 State TDR (Section 137)