## Facts

- Jackson Township amended its land-use code to require certain residential developers, as a condition of approval, to either dedicate land for common open space and recreational areas/facilities or pay a monetary assessment in lieu of dedication.
- The requirements applied broadly to sizable residential developments, including projects not proposed or approved as “planned developments” under the Municipal Land Use Law (MLUL).
- The New Jersey Shore Builders Association challenged the ordinance in the Law Division, arguing the Township lacked statutory authority under the MLUL to impose these exactions on non-planned developments.
- The Law Division invalidated the ordinance provisions as ultra vires, reasoning that the MLUL authorizes such conditions only for “planned developments” as defined by statute.
- Jackson Township appealed to the Appellate Division.

## Issues

1. Whether the MLUL authorizes a municipality to require open-space/recreation land set-asides or in-lieu fees for all sizable residential developments as a condition of subdivision or site-plan approval.
2. Whether an ordinance imposing those exactions outside the MLUL’s planned-development framework exceeds delegated municipal power and is therefore ultra vires.

## Decision

- The Appellate Division affirmed the judgment invalidating the challenged portions of the ordinance.
- The court held the MLUL limits municipal authority to require common open space and recreational set-asides (and related in-lieu assessments) to approvals of “planned developments” under N.J.S.A. 40:55D-43.
- The Township could not rely on general subdivision/site-plan authority or broad zoning police powers to impose this category of exactions on non-planned residential developments.
- To the extent the ordinance imposed these requirements on developments not processed as planned developments, it was void as beyond statutory authority.

## Legal Principles

- Municipalities possess only those powers expressly granted by the Legislature or necessarily implied; local policy preferences cannot expand delegated authority.
- When the MLUL specifically authorizes an exaction in limited terms (e.g., N.J.S.A. 40:55D-43 for planned developments), municipalities may not extend the same exaction to other contexts by ordinance.
- General MLUL provisions governing subdivision and site-plan review do not implicitly authorize new, blanket categories of mandatory land dedications or in-lieu fees beyond those the statute delineates.
- The statutory distinction between “planned developments” and ordinary subdivisions/site plans controls the availability of common open space and recreational exactions.

## Conclusion

The Appellate Division held that Jackson Township lacked MLUL authority to condition approval of non-planned residential developments on open-space/recreation land dedication or an in-lieu fee, making those ordinance provisions ultra vires and invalid.


N.J. Shore Builders Ass'n v. Twp. of Jackson, 401 N.J. Super. 152, 949 A.2d 312 (App. Div. 2008)