Daily Development for Tuesday, November 11, 2003 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu ZONING AND LAND USE; PROCEDURE; ATTORNEY'S FEES; PUBLIC ADVOCATES: In a question of first impression, the New Jersey Superior Court Law Division held that, by ordinance, a land use applicant, may be forced to absorb the costs and expenses of a public advocate. The Cerebral Palsy Center v. Mayor and Council of the Borough of Fairlawn, 2003 WL 22119780 (N.J. Super. Ct. Law Div.). The plaintiff applied for variances to build an addition to its educational facility in Fair Lawn, New Jersey. The Fair Lawn Zoning Board held five subsequent public hearings on the plaintiff's application. During the course of the application, the Fair Lawn Public Advocate, as established by ordinance, presented the objections of the plaintiff's neighbors and the opinions of the two experts. According to Fair Lawn Municipal Ordinance 125-60.1C & J, an applicant presenting a zoning application before the Zoning Board is responsible for the costs and expenses, including experts, of the Public Advocate, in this case exceeding $17,000. In a motion for summary judgment, the plaintiff contended that it was entitled to a declaration that 125-60.1 was void insofar as it obligated an applicant to pay the costs and expenses of the Fair Lawn Public Advocate. The court found that 125.60.1C to be a proper implementation of authority under New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-53.2, in which the state grants zoning power to the municipalities generally, and specifically, in the cited section, the power to shift fees when a municipality hires a professional to assist in an application. But insofar as this case might apply to other states and their statewide zoning legislation, the court also found that, assuming the MLUL did not address the issue, that 125-60.1 would still be valid because the MLUL does not limit the permissible scope of municipal authority concerning application submission requirements so long as those requirements are not inconsistent with any provisions of the MLUL. D.L. Real Estate Holdings L.L.C. v. Point Pleasant Beach Planning Board, 176 N.J. 126, 130 (2003). The court further found that there was nothing arbitrary or capricious about the municipality's implementation of 125-60.1C, that the advocate could receive annual pay as well as the hourly fee imposed and that the applicant could challenge the reasonableness of all costs. Comment: Zowie!! Now we not only have to crawl on belly, blueprints and attorneys in hand, to seek permission to develop our property, now we have to fund the opposition. Having been through one divorce, the editor has first hand experience as to how it feels to have to fund opposing counsel. No fun. But is it unconstitutional? Not in New Jersey, but perhaps that's not the best test. Has this notion spread to other jurisdictions? Readers are encouraged to respond to or criticize this posting. Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues. 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