February 25, 2026 Planning Board Special Meeting - WEHI Transcript

03/20/2026 06:14:03 AM Page 141 to 144 of 154 36 of 68 sheets 141 and the mapping expert. Testimony had to do with smart1 growth planning and mapping, as Mr. Afran showed you.2 It had nothing to do with the ordinance, it had nothing3 to do with the site plan. If anything, one of his maps4 showed that the single family homes on Howell Drive were5 built on steep slopes.6 Finally, the applicant called Ms. Michele7 Byers on August 25 of last year. She is the retired8 executive director of the New Jersey Conservation9 Foundation. Her testimony had nothing to do with the10 ordinance or the site plan. She testified about land11 preservation and the value of land. The board attorney,12 on Page 87, rightfully questioned that this seemed to13 relate to a challenge of the ordinance. Ms. McGovern14 correctly noted, "The board can't void out this15 ordinance because environmentally they think it has a16 better idea what should have been there or what should17 have been done." So -- I'm going to wrap up shortly.18 You've heard the facts, you're familiar with the law.19 There's no question that, except for the bulk variance20 regarding building foundation exposure, the application21 fully complies with the IH-1 zoning ordinance. That one22 bulk variance, as I alluded to, should be granted23 pursuant to Section 70C of the Land Use Law and the DCA24 regulations requiring municipalities to cooperate with25 142 affordable housing developers in granting reasonable1 variances.2 The boards obligation under the law is3 clear, it doesn't have the power or jurisdiction to4 disregard the zoning ordinance in place since October of5 2020, only the Governing Body has the power to adopt,6 amend or repeal zoning ordinances. The MLUL defines the7 term, Governing Body, as "The chief legislative body of8 the municipality." And the laws clear that it's the9 Governing Body which may adopt or amend the zoning10 ordinance, not the board.11 Here the town council adopted the zoning12 ordinance and it was the Planning Board adopted the13 Third Round Fair Share plan which included this property14 as a compliance mechanism.15 And two, recommended the adoption of the16 zoning ordinance to the council.17 Importantly, ordinances enacted pursuant to18 the -- enacted pursuant to the police power are19 presumptively valid. That's New Jersey Shore Buildings20 Association v. Township of Jackson, 1990 NJ 38

Importantly, ordinances enacted pursuant to18 the -- enacted pursuant to the police power are19 presumptively valid. That's New Jersey Shore Buildings20 Association v. Township of Jackson, 1990 NJ 38 Supreme21 Court case 2009.22 It's black letter law that a planning board23 must apply the ordinances that in are effect at the time24 the application is submitted under the Time Of The25 143 Application Rule. That's Section 10.5 of the Land Use1 Law.2 The applicant fully recognizes that the rule3 provides an exception for those subsequently adopted4 ordinances regarding public health and safety. However,5 there have been no subsequent changes to the IH-1 zone6 ordinance which provides that all other provisions of7 the Land Use code are inapplicable. It specifically8 states, "Any other regulation pursuant -- pertaining to9 tree removal and replacement in the township code, shall10 not apply to the property." Regardless, as already11 addressed, all the evidence presented supports that the12 that property condition has not changed between the 202013 rezoning of the property and the present. The township14 was well aware of the physical characteristics of the15 property when it entered into the settlement agreement16 and adopted the ordinance. The Governing Body17 inherently considered any potential effect on public18 welfare in providing that relief. It determined that in19 this case for a property the township vetted for more20 than four years, where disturbance was being limited to21 only one fourth of the property, and the remaining 9222 acres would be forever preserved, the ordinance23 provisions which don't apply were not essential to24 protect the public welfare. So even if there was a25 144 subsequently adopted ordinance for this property, which1 there is not, the public health and safety exception2 would not apply.3 The MLUL is clear. Section 46B states, "The4 Planning Board shall, if the proposed development5 complies with the ordinance and the MLUL, grant6 preliminary site plan approval." Likewise Section 50A7 plainly states, "The Planning Board shall grant final8 approval if detailed drawings, specifications and9 estimates of the application for final approval conform10 to the standards established by the ordinance." The11 word 'shall' "included in these statutes show that12 approval with a fully conforming application is not a13 discretionary

inal approval conform10 to the standards established by the ordinance." The11 word 'shall' "included in these statutes show that12 approval with a fully conforming application is not a13 discretionary decision." This is supported by the New14 Jersey Supreme Court decision in Pizzo Manton Group v.15 Township of Randolph, 137 NJ216 1994. All though that16 case concerned a subdivision application, as I just17 pointed out, the MLUL has corresponding "shall" grant18 language for site plan approval. The Pizzo court held19 that approval must be granted if the application20 complies with the ordinance. Noting that it's the21 Governing Body that's, the entity, which devises public22 health or safety standards. The zoning ordinance23 combined with the MLUL, shall grant provision, is what24 provides the framework within which planning boards must25