By Assemblyman Richard H. Bagger (R-22)

Zoning and land use have long been regarded as the most fundamental responsibility of municipal government and the most important aspect of New Jersey's "home rule" tradition. However, in recent years, court decisions interpreting the New Jersey Constitution and the Municipal Land Use Law have gradually eroded local control over important zoning decisions.

In particular, courts have created a rule of law, known as the "inherently beneficial use" doctrine, which limits the ability of municipalities to apply their Land Use Ordinances to certain uses which the courts define as "inherently beneficial." Initially, courts held that hospitals, schools and public utilities were "inherently beneficial uses." More recently, courts have held that towers for cellular antennae are also "inherently beneficial," and, therefore, very difficult for municipalities to regulate. It is impossible to predict what category of use will be the next one called "inherently beneficial" by the courts. Yet it is clear that without an amendment to the Municipal Land Use Law, New Jersey is on a slippery slope towards courts superseding municipal planners whenever a necessary but controversial use is proposed.

New Jersey public policy must recognize a balance between the need to provide locations for facilities of a public or quasi-public nature and the ability of local governments to review the specific location and site plans for these facilities. Unfortunately, the New Jersey courts have tipped the balance in favor of applicants proposing to build a facility considered "inherently beneficial" and against the legitimate desire of local planners to identify the most appropriate sites for particular uses within a community through zoning and address important site plan considerations, such as requirements for setbacks from the property line and off-street parking.

To restore balance to local planning involving facilities such as cellular telephone towers, I am sponsoring legislation (Assembly Bill 672) which amends the Municipal Land Use Law to define "inherently beneficial use" and re-establish municipal zoning authority over these applications.

Specifically, this legislation would accomplish two things. First, it provides that the "inherently beneficial" nature of a use is relevant only to use variances, and is not relevant in any way to bulk variances, such as lot coverage, setback and off-street parking requirements. The fact that a use is an "inherently beneficial" one should not be used by the courts to order municipalities to approve variances which have nothing to do with the nature of a particular use.

Second, the bill provides that the "inherently beneficial" nature of a use satisfies only the "positive" criteria for a use variance and requires - like all other use variances - that the applicant nevertheless still prove the absence of the "negative" criteria. In this way, municipalities would still be able to evaluate meaningfully applications to make sure that a proposed use on a particular site does not have a negative impact on the overall zoning plan of the community.

Even while this important legislation is pending, important steps are being taken to enhance municipalities' efforts to plan proactively for necessary but sensitive uses. The New Jersey League of Municipalities, the New Jersey Planning Officials and representatives of the telecommunications industry are working together to develop protocols for identifying appropriate sites for cellular telephone antennae. These protocols include such common sense ideas as using existing facilities like water towers wherever possible and requiring that towers be shared by more than one telecommunications company. In addition, municipal and planning officials are working on proposals for model ordinances that municipalities could enact addressing cellular telephone towers.

New Jersey can accommodate the rapidly expanding cellular communications network without sacrificing local zoning prerogatives. Restoring balance to the Municipal Land Use Law as it relates to "inherently beneficial uses" will accomplish that goal.