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Lionshead Woods Corp. v. Kaplan Brothers

Decided: July 6, 1990.


Serpentelli, A.j.s.c.


This opinion addresses in limine several novel issues created by plaintiff's challenge to the validity of portions of Lakewood's zoning ordinance and the township's admitted failure to comply with N.J.S.A. 40:55D-89, which requires a periodic reexamination of its master plan and development regulations. That statute provides, in part:

The governing body shall, at least every six years, provide for a general reexamination of its master plan and development regulations by the planning board, which shall prepare and adopt by resolution a report on the findings of such reexamination, a copy of which report and resolution shall be sent to the county planning board and the municipal clerk of each adjoining municipality. The first such reexamination shall have been completed by August 1, 1982.

The next reexamination shall be completed by August 1, 1988. Thereafter, a reexamination shall be completed at least once every six years from the previous reexamination. . . . .

It is stipulated that the Lakewood Township Planning Board did not conduct the required periodic reexamination within the required time. As a result, the provisions of N.J.S.A. 40:55D-89.1 were triggered. That statute mandates:

The absence of the adoption by the planning board of a reexamination report pursuant to section 76 of P.L.1975, c. 291 (C. 40:55D-89) shall constitute a rebuttable presumption that the municipal development regulations are no longer reasonable.

This relatively recent amendment to the Municipal Land Use Law has received little attention and has not been directly interpreted by our case law. The only reported decisions referring to it have considered it within different contexts. In Medici v. BPR Co., 107 N.J. 1, 526 A.2d 109 (1987), the Supreme Court focused on timely compliance with the mandatory reexamination provisions of N.J.S.A. 40:55D-89 as part of the Court's justification for requiring an enhanced quality of proof for special reasons variance applications. In Nat'l Auto. Sal. Serv. v. Delran Tp. Adj. Bd., 236 N.J. Super. 579, 566 A.2d 572 (Law Div.1989), Judge Haines made reference to the above quoted statutes while determining whether a board of adjustment had properly declined to exercise jurisdiction over a variance application. In that case, Judge Haines did not have reason to address the plethora of questions created by the rather innocuous provisions of N.J.S.A. 40:55D-89.1. Those questions include:

1. Does the statute affect the burden of going forward or does it shift the burden of proof?

(a) Is it a so-called "natural" or "logical" presumption which generally affects only the burden of going forward, or;

(b) Is it a so-called "artificial" presumption created for public policy reasons which is of such weight or importance that it generally shifts the burden of proof? (e.g., presumption of legitimacy, presumption against insanity, presumption of a gift in contemplation of death, etc.)

2. What is the quantum of proof necessary to overcome the presumption? Is it sufficient for the township to present conclusory testimony that the master

plan and development regulations are still viable or must the township present more extensive testimony to support that conclusion?

3. If the township overcomes the presumption of invalidity, does the presumption of validity reattach or is the question of validity determined by the usual standard of proof, a preponderance of the credible evidence?

4. To overcome the presumption, must the testimony establish the continuing validity of the zoning regulations for the entire municipality or is it sufficient to address the specific provisions under attack? That is, in this case, can the township limit its proof to the continuing integrity of the R-40 zone requirements since the plaintiff has only challenged those restrictions?

A review of the legislative history of N.J.S.A. 40:55D-89 and 89.1 offers little guidance. The statement of the Senate County Municipal Government Committee ...

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