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New Jersey Chapter v. New Jersey State Board of Professional Planners

Decided: February 20, 1967.

NEW JERSEY CHAPTER, AMERICAN INSTITUTE OF PLANNERS, ETC., ET AL., PLAINTIFFS-RESPONDENTS,
v.
NEW JERSEY STATE BOARD OF PROFESSIONAL PLANNERS, DEFENDANT-APPELLANT, AND LEE T. PURCELL AND DONALD R. GOODKIND, DEFENDANTS-INTERVENERS-APPELLANTS



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For modification -- Justice Hall. The opinion of the court was delivered by Francis, J. Hall, J. (dissenting in part and concurring in part).

Francis

[48 NJ Page 586] In this declaratory judgment proceeding the Chancery Division of the Superior Court declared unconstitutional a portion of section 11 of the professional planners licensing act, L. 1962, c. 109; N.J.S.A. 45:14A-11. The condemned portion exempted duly licensed professional engineers, licensed land surveyors and registered architects of this State from the requirement, imposed by the statute on all other persons, to take and pass an examination for a planner's license, and it directed the State Board of Professional Planners (which was created by the same statute) to issue such a license on application therefor and payment of fee by any such exempted person. The trial court also held that the invalid portion of section 11 was severable, and not so intimately connected with the statute as to indicate that the Legislature would not have adopted the remainder without it. The Board was restrained from issuing

licenses to persons who sought to qualify under the offending exemption. An appeal was taken to the Appellate Division, where the restraint was continued until final judgment. Thereafter, before the matter was reached for argument there, all parties moved for certification pursuant to R.R. 1:10-3, and we granted the motion.

The action was instituted by the New Jersey Chapter, American Institute of Planners, an unincorporated association of the State of New Jersey. The association is a professional society created to study and advance the art and science of city, regional, state and national planning. The complaint fails to allege that the organization consists of seven or more members, which the statute, N.J.S. 2A:64-1, indicates is a prerequisite to suit in the entity name. But no attack on its standing to act as plaintiff is made on that ground. Six individuals joined as plaintiffs describing themselves as engaged in the practice of professional planning, and alleging that they are all qualified by education and training to engage in the practice of planning.

The only defendant named in this complaint was New Jersey State Board of Professional Planners. Thereafter the New Jersey Society of Professional Engineers, the New Jersey Association of Consulting Engineers and the New Jersey Society of Architects were allowed to intervene as defendants in the trial court. Although designated amici curiae, they were given leave to participate in the proceedings as fully as if they were named defendants originally. After entry of judgment in the trial court, Donald R. Goodkind and Lee T. Purcell, licensed professional engineers, were granted leave to intervene as defendants so as to participate in the appeal.

The standing of the Institute to bring the action challenging constitutionality of a part of the statute is contested for the first time on appeal. In doing so, appellants place reliance upon the much criticized case of New Jersey Bankers Ass'n v. Van Riper, 1 N.J. 193 (1948). See,

Schnitzer, "Civil Practice & Procedure," 9 Rutgers L. Rev. 307, 317 (1954); Jaffee, "Standing to Secure Judicial Review: Private Actions," 75 Harvard L. Rev. 255, 301 (1961). We need not resolve the issue here, but see New Jersey State Bar Association v. Northern New Jersey Mortgage Associates, 22 N.J. 184, 196 (1956). The individual plaintiffs as practicing planners have sufficient interest in the validity of the statute to prosecute the action. N.J. Home Builders Ass'n v. Div. on Civil Rights, 81 N.J. Super. 243 (Ch. Div. 1963), aff'd sub nom. David v. Vesta Co., 45 N.J. 301, 309 (1965).

I

THE STATUTE

Prior to 1962 unsuccessful attempts were made under the sponsorship of the American Institute of Planners to obtain passage by the Legislature of a so-called professional planners licensing act. The proposal encountered opposition from other established professional groups, principally engineers, land surveyors and architects, who were already subject to separate licensing statutes and who had qualified for licenses by meeting the conditions imposed thereby. Finally in 1962 the act in question, obviously a compromise measure (more of this later) was adopted with the acquiescence of the competing interests, as chapter 109 of the Laws of 1962.

The act provided that after July 10, 1962 no person could practice or offer to practice professional planning in this State unless he were licensed to do so under its provisions. The practice of professional planning is defined in most general terms in section 2 as "the administration, advising, consultation or performance of professional work in the development of master plans in accordance with the provisions of chapters 27 and 55 of Title 40 of the Revised Statutes, as amended and supplemented; and other professional planning services related thereto intended primarily to guide governmental policy for the assurance of the orderly

and co-ordinated development of municipal, county, regional, and metropolitan land areas, and the State or portions thereof." N.J.S.A. 45:14A-2.

Chapters 27 and 55 of Title 40 provide for the creation of county, regional and municipal planning boards to make and adopt master plans for the physical development of the political unit involved. For example, a county planning board is directed to make a master plan for the physical development of the county, and such plan with the accompanying maps, plats, charts and descriptive and explanatory matter is required to show the board's recommendations for the development of the territory covered by the plan, and may include "among other things, the general location, character, and extent of streets or roads, viaducts, bridges, waterway and waterfront developments, parkways, playgrounds, forests, reservations, parks, airports, and other public ways, grounds, places and spaces; the general location and extent of forests, agricultural areas, and open-development areas for purposes of conservation, food and water supply, sanitary and drainage facilities, or the protection of urban development, and such other features as may be important to the development of the county." N.J.S.A. 40:27-2. The board is authorized to employ "experts" for the making of the plan. N.J.S.A. 40:27-3.

A regional planning board, if created, is directed also to make a master plan and "such surveys and studies as may be essential thereto," including "all the elements of physical development that may be locally important and desirable." N.J.S.A. 40:27-10.

A municipal planning board is authorized to prepare "a master plan for the physical development of the municipality which generally shall comprise land use, circulation, and a report presenting the objectives, assumptions, standards and principles which are embodied in the various interlocking portions of the master plan." The plan "shall be a composite of the one or more mapped and written proposals recommending the physical development of the municipality

* * *." N.J.S.A. 40:55-1.10. "[T]he master plan may cover proposals for:

(a) the use of land and buildings -- residential, commercial, industrial, mining, agricultural, park, and other like matters;

(b) services -- water supply, utilities, sewerage, and other like matters;

(c) transportation -- streets, parking, public transit, freight facilities, airports, and other like matters;

(d) housing -- residential standards, slum clearance and redevelopment, and other like matters;

(e) conservation -- water, forest, soil, flood control, and other like matters;

(f) public and semi-public facilities -- civic center, schools, libraries, parks, playgrounds, fire houses, police structures, hospitals, and other like matters;

(g) the distribution and density of population;

(h) other elements of municipal growth and development." N.J.S.A. 40:55-1.11.

The master plan is required to be made "with the general purpose of guiding and accomplishing a co-ordinated, adjusted and harmonious development of the municipality and its environs which will, in accordance with present and future needs, best promote health, safety, morals, order, convenience, prosperity and general welfare, as well as efficiency and economy in the process of development and the maintenance of property values previously established. To such end, the master plan shall also include adequate provision for traffic and recreation, the promotion of safety from fire and other dangers, adequate provision for light and air, the promotion of good civic design and arrangements, the wise and efficient expenditure of public funds, and adequate provision for public utilities and other public requirements." N.J.S.A. 40:55-1.12.

In order to become licensed as a professional planner, a candidate must file an application under oath showing that he has the minimum educational qualifications. They are: [48 NJ Page 591] (a) A graduate degree in professional planning from an accredited college or university in a curriculum in recognized planning subjects as shall be approved by the State Board of Professional Planners, plus a minimum of three years experience in the full-time practice of professional planning; or (b) an undergraduate degree from an accredited college or university in a curriculum offering a major or option comprising a minimum of 21 credit hours in such recognized planning subjects as shall be approved by the board, with a minimum of four years experience in the full-time practice of professional planning; or, (c) graduation from a secondary school and at least 12 years of professional planning experience acceptable to the board; or, (d) for a period of eight years only subsequent to July 1, 1963, a degree in a closely related course of study such as architecture, landscape architecture, engineering, law, sociology, geography, public administration, political science or economics, with a minimum of 18 credit hours in recognized planning subjects included as part of or in addition to such courses of study in an accredited college or university, plus a minimum of five years experience in the full-time practice of professional planning. (Emphasis ours) In addition the applicant must obtain a passing grade as determined by the board upon a qualifying examination to be prepared by the board or by experts chosen by it, and given annually. The examination is to cover such subject matters as (a) history of urban, rural, and regional planning; (b) fundamental theories, research methods and common basic standards in professional planning; (c) administrative and legal problems, instruments and methods; (d) current planning design and techniques; (e) history, principles and requirements of planning and zoning procedures in the State of New Jersey. N.J.S.A. 45:14A-8, 9. A grandfather clause is added by section 19 under which, for a period of one year from July 1, 1963, persons having certain listed qualifications may be granted licenses without examination. N.J.S.A. 45:14A-19. The clause is not involved in these proceedings.

A "State Board of Professional Planners" is established consisting of five members appointed by the Governor, with the advice and consent of the Senate, who shall be professional planners licensed under the act. N.J.S.A. 45:14A-4. For obvious reasons the members of the first Board are not required to be such licensed planners. But they must be members of the recognized organization representing professional planners in the State, as well as United States citizens, residents of New Jersey, with at least five years active experience in professional planning, and of good standing in the profession. N.J.S.A. 45:14A-4, 5, 20. (Note that the reference in section 20 to section 3 of the act probably should be to section 4.) The board is given power to make and enforce rules and regulations necessary to carry out the provisions of the act, and to discipline licensed planners for their violation. N.J.S.A. 45:14A-4, 15.

II

THE SECTION OF THE ACT UNDER ATTACK

When the statute was adopted by the Legislature it contained section 11 consisting of five paragraphs dealing generally with the license-qualifying examinations. The fourth paragraph provides:

"The board upon application therefor and the payment of the application and license fees fixed by this act shall issue a certificate of license as a professional planner to any duly licensed professional engineer, licensed land surveyor or registered architect of New Jersey."

This paragraph was not included in the bill, A 546, as introduced in 1961 under the sponsorship of the New Jersey Chapter of the American Institute of Planners. It was inserted, however, (along with section 3, N.J.S.A. 45:14A-3, and part of section 17, N.J.S.A. 45:14A-17, to be more specifically referred to hereafter in ...


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