Jennings v. Borough of Highlands
13 A.3d 911
N.J. Super. Ct. App. Div.2011Background
- The Borough of Highlands amended zoning to permit mixed-use high-rise development in the MH Mobile Home District, proximate to Eastpointe condominium common elements.
- Eastpointe condo owners sought to protest the amendment under MLUL N.J.S.A. 40:55D-63 via protest petitions alleging a super-majority requirement.
- Early protest petition (June 2007) had 74 Eastpointe signatures but Eastpointe Association did not sign; the Borough later considered a second petition (December 2007) with 74 signatures from Eastpointe unit owners.
- Governing body initially defeated Ordinance 0-07-07 in September 2007; Highlander challenged notice defects and petition sufficiency, prompting renewed notices and reintroduction.
- Special counsel advised that defective prior notice voided earlier action and supported reviving the ordinance; the December 2007 hearing proceeded under advisement, with public comments opposing the ordinance.
- The Law Division later held the protest petitions did not trigger a super-majority vote and dismissed the spot-zoning claim; the appellate court reversed in part and invalidated Ordinance 0-07-07 for separate procedural defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Eastpointe condo owners qualify as “owners of lots or land” for protest petition. | Eastpointe owners have ownership interests in common elements within 200 feet. | Condominium ownership is a hybrid interest; only the association owns/controls the common elements for MLUL protest purposes. | Condo owners do not qualify; association must protest on behalf of the lots/land. |
| Whether the Planning Board’s report was properly reviewed under N.J.S.A. 40:55D-26(a). | Governing body reviewed the Planning Board’s report. | Governing body failed to meaningfully review the report. | Material violation of 40:55D-26(a) invalidates Ordinance 0-07-07. |
| Whether the ordinance constitutes spot zoning. | Ordinance improperly singles out Highlander’s property for a high-rise development. | Ordinance adds a conditional use consistent with surrounding development; not spot zoning. | Spot zoning claim improvidently dismissed; requires evidentiary development guidance. |
| Whether the protest petitions were sufficient to trigger a super-majority vote. | Petitions met 20% area threshold within 200 feet. | Eastpointe signatures count within common elements and do not constitute 20% of protest-eligible area. | Protests failed to meet 20% threshold; ordinance not saved by protest petitions. |
Key Cases Cited
- Fox v. Kings Grant Maint. Ass’n, Inc., 167 N.J. 208 (2001) (condominium owners’ interests and common elements influence ownership rights under MLUL)
- Brandon Farms Prop. Owners Ass’n, Inc. v. Brandon Farms Condo. Ass’n, Inc., 180 N.J. 361 (2004) (ownership and dominion over common elements; fiduciary duties of associations)
- Kim v. Flagship Condo. Owners’ Ass’n, 327 N.J. Super. 544, 327 N.J. Super. 544 (2000) (association fiduciary duties; governance of common elements)
- Siller v. Hartz Mountain Assocs., 93 N.J. 370, 93 N.J. 370 (1983) (definition of condominium ownership and common elements)
- Palisades Props., Inc. v. Brunetti, 44 N.J. 117 (1965) (spot zoning inquiry and its antithesis to planned zoning)
- Riga Finnegan, LLC v. Twp. Council of S. Brunswick, 197 N.J. 184 (2008) (test for spot zoning; impact on community planning)
- Mountain Hitt, LLC v. Middletown Twp., 353 N.J. Super. 57 (2002) (protest-rights and MLUL procedures contrasted)