Local Law Blogs

Ordinance Requiring Disclosure of Political Contributions Held Unconstitutional

Local ordinances requiring the disclosure of political contributions in connection with applications for land use approvals under the Municipal Land Use Law (“MLUL”) have popped up in one form or another in numerous New Jersey municipalities. Enacted ostensibly for the purpose of fostering good government and reducing corruption and appearances of impropriety, such laws can be unduly burdensome on landowners and developers. On April 17, 2008, in a case of first impression captioned Greenridge Estates, L.L.C. v. The Mayor and Township Council, et al. the New Jersey Superior Court, Law Division, reviewed an ordinance enacted in Monroe Township, Middlesex County, which required applicants for land use approvals and their professionals to disclose certain political contributions and business relationships and found it to be unconstitutional and contrary to the dictates of the MLUL.

In Greenridge Estates, a developer filed an application for preliminary major subdivision approval with the local planning board and, two days later, the municipal governing body adopted an ordinance requiring certain disclosures by applicants for land use approvals. For example, the said ordinance provided that an applicant must “[d]isclose all political donations made by the applicant, and any professionals of the applicant, within the past two (2) years, and any business relationship of the applicant or any of the applicant’s professionals with a board member, and list all consultants, facilitators or other professionals used in connection with the pending application.” All such disclosures “shall be a required checklist item for any land development application requiring a variance, waiver or exception,” and any “knowing failure” on the part of an applicant to comply with this mandate “shall be punishable by a two thousand dollar[-f]ine and/or remanding of the application to the board for reconsideration.”

When the planning board had deemed the developer’s application incomplete for failing to make the aforesaid disclosures, the developer filed suit against the municipality. In evaluating the merits of the developer’s challenge, the trial court described the controversy as impinging upon the developer’s constitutionally protected right to freedom of association and right to privacy and invalidated the Monroe Township ordinance on both grounds. The trial court based this ruling principally on the lack of a rational connection between the disclosures required by the subject ordinance and the stated purpose of the ordinance, that being the elimination of appearances of impropriety, and due to its being both over-inclusive and under-inclusive. In this regard, the trial court opined that “[t]here cannot be an appearance of favorable treatment due to political contributions since none of the members of the Zoning Board of Adjustment are elected, and only two of the nine Planning Board members may be elected officials.” In addition, “the Ordinance cannot be upheld because it is overly-broad[,]” since it requires the disclosure of all political contributions irrespective of the amount or the person to whom they were made requiring, hypothetically, “the disclosure of a $10 political contribution made by an applicant to the governor of Hawaii[.]” By the same token, “the Ordinance is under-inclusive[,] . . . because it does not apply to objectors to an application.”

In addition to constitutional infirmities, the trial court struck the “remand remedy” in the ordinance due to the lack of legislative authority in the MLUL to enact such provisions and “without such authority in the MLUL, the governing body cannot confer upon itself or anyone else the authority to remand an application for reconsideration once rights have vested.”

In the face of mounting regulations at every level of government, the Greenridge Estates decision is a breath of fresh air for beleaguered landowners and developers in Monroe Township. Although not precedential, the Greenridge Estates decision is well-reasoned and could serve as a springboard for positive rulings in other cases and the eventual elimination of local disclosure laws in the land use application process.

Full post as published by New Jersey Law Blog on May 12, 2008 (boomark / email).