By Joyce Blay
Staff Writer
JACKSON — The New Jersey Shore Builders Association, a nonprofit organization serving members in Monmouth and Ocean counties, has challenged an ordinance adopted by the Township Committee in May that requires developers to set aside land for passive and active recreation or to contribute to a fund established for that purpose.
In papers filed June 30 in state Superior Court, Toms River, by attorney Paul H. Schneider of the firm Giordano, Halleran and Ciesla, Middletown, the NJSBA asserts that in adopting the ordinance, Jackson exceeded its authority to do so under the Municipal Land Use Law.
According to the complaint, Jackson deviated from the land use law definition of "open space" as it pertains to wetlands, open bodies of water, water courses, sloped areas, waterways and detention facilities.
"The [land use law] grants municipalities authority to regulate the use and development of land; absent specific authorization pursuant to the Municipal Land Use Law, a municipality has no independent authority to regulate land use and development," Schneider said in the complaint. "Since the ordinance as described above defines ‘open space’ as contradictory to the [land use law] and in a manner not authorized by the [law], it therefore violates the Municipal Land Use Law by exceeding the grant of authority contained in the [law]."
The papers also assert that Jackson exceeded its authority under the land use law with respect to the definition of "open space" as provided by the land use law, thereby excluding areas that would otherwise qualify as "open space," and that the township’s ordinance was arbitrary, capricious and unreasonable, while not serving a legitimate planning or zoning purpose.
Schneider also cited Jackson’s recreational standards for residential developments, which the attorney said were arbitrary, capricious and unreasonable, and claimed they did not provide clear standards for compliance.
The builders association is asking that it be recompensed for all court costs.
The ordinance had originally been scheduled for adoption on April 15 and again on April 28, but the committee tabled it both times in order to revise its language due to concerns raised by the Pinelands Commission.
On May 12, the committee formally adopted the final version of the ordinance.
At that meeting, Andrew Robins, another attorney with the same firm representing the builders association, came before the committee to read a prepared statement.
"Overall, the [builders] agree that the inclusion of open space and areas available for passive and active recreation are often important components of building successful communities," Robins said. "Certainly the marketplace tends to respond favorably to such amenities. However, the proposed ordinance seeks to mandate the type, size and location of open space and recreational areas without regard to market conditions and in a manner inconsistent with New Jersey law."
If so much recreational land were set aside as would be required under the ordinance, said Robins, it "would mandate that new housing provide a disproportionate share of new recreational facilities."
Despite Robins’ objections, the committee adopted the ordinance that is now being challenged by the builders association.
Given a spate of lawsuits filed by the builders association against Jackson recently, Mayor Michael Kafton said he was not surprised to hear about the current suit.
"We’re at different ends of the spectrum," the mayor said. "The developers want to develop as much of the town as they can, and the Township Committee’s philosophy is to preserve as much of [it] as we can."
Kafton suggested that the difference between their two goals was a matter of perspective.
"Our job is to control the growth in town, which is in the interest of the residents, and not a special interest group, which is what the Shore Builders [represent]," Kafton said.