Loading...
HomeMy WebLinkAboutA003 - Legal Opinion dated March 18, 1988 i""EiI CITY UF AMES IOWA 50010 I ALL-AMERICA CITY 1%2-1%3 March 16, 1988 _ J6 The Honorable F. Paul Goodland, Mayor and Members of the City Council L�177 CL�F� u of the City of Ames, Iowa C�TroFAMES, 10i Re: Historic Preservation District Ordinance Dear Mayor Goodland and Council Members: The next step in the Historic District Ordinance process is to designate an area that will be subject to the preservation regulations. This is done by enactment of an ordinance to describe the boundaries of the district. The question now is whether the districting ordinance can be enacted in the same manner as any other ordinance, or whether the special proce- dures for land use zoning ordinances must be followed. Attached is a copy of the March 3, 1987 decision of the New Jersey Appellate Court invalidating the Historic Preservation Ordinance of the City of Middleton, New Jersey because it did not conform in it' s procedures to the zoning enabling law of that state. As a matter of caution, it has been my advice that the procedure of the Iowa zoning statute be followed. However, that could require five votes for passage of the ordinance if the owners of 20% of the lots in the area to be designated file written protests. Understandably, proponents of the ordinance would prefer to not be bound by the zoning procedures. It' s been said they received encouragement in that regard from the staff of the Iowa Department of Cultural Affairs. We should have the benefit of the Attorney General ' s opinion on this issue. It is my understanding that council member Brown intends to make the request through Senator Brunner. Respectfrlully submitted, John R. Kla s City Attorney 5th & Kellogg Ames, Iowa 50010 (515) 239-5146 JRK:gmw cc: Brian O'Connell AMES—THE CENTER OF IT ALL 41 L. Ed.2d 439, 458� (1974) andyState v. Cameron, J100yN. J. U586, 624, L498�A-2d 1217 (1965) , Middletown urges that because the Neuberger home is historically ,notable by any yardstick, the Estate has no standing to assert a vagueness argument which even if correct would be applicable only to others. As we observed, this is only one of the reasons urged in support of the contention tPithat the ordinance is invalid. Moreover, the problems we perceive with s ordinance are based upon separate issues raised by the Estate. Accordingly, its standing in this matter as an affected property owner is not subject to question. See, e. g. , So. Burl . Co. NAACP v. Mt. Laurel Twp. , 67 N. J. 151, 159 n. 3 , 336 A. 2d 713 1975) a ( PP dism. 423 U. S. 808, 96 S. Ct. 18, 46 L.Ed. �2 COPR. (C) WEST 1988 NO CLAIM TO ORIG. U. S. GOVT. WORKS (521 A. 2d 1336 R 1 OF 3 P 17 OF 26 ALLSTATES P ORDINANCETHE The trial judge extensively reviewed the heHistoric Ordinance andthe standards which the Landmarks Commission must employ inmakingoncluded'histtorricthat ' designations are too broad and vague to be capable of objective application. It is clear that the drafters of the ordinance at least made a substantial effort to establish coherent standards. It is unnecessary to consider the vagueness issue, however, in light of our concern with a more fundamental problem raised by the Estate below and on appeal , i . e. , the failure of Middletown to comply with the provisions of State enabling legislation, the Municipal Land Use Law, N. J. S.A. 40: 55D-1 et se site and district designation power to its Landmarkshen Commissiongated historic (2) Invalidity of this delegation is not based upon the Estate ' s contention that the State has preempted local designation of historic sites by its enactment of the State Register Law, N. J. S.A. 13 : 1B-15 . 128 et seq. Although there is no express delegation of powers to municipalities in the State Register Law, we do not read into that limited statute a legislative intention to preempt all municipal action to preserve historic sites . the Legislature has clearly signalled its desire to expand theomunicipalrrole in such preservation efforts, at least since enactment of the Municipal Land Use Law as L. 1975 c . 291 s 1 et seq. (N. J. S .A. 40: 55D-1 et se is not whether the Legislature has left room for municipalities to The question 521 A.2d 1336 COPR. (C) WEST 1988 NO CLAIM TO ORIG. U. S. GOVT. WORKS R 1 OF 3 P 18 OF 26 ALLSTATES P place their local imprint on historic site and district selection, but how this municipal power is to be exercised. We hold that it must be exercised according to the enabling authority and local planning and zoning scheme provided b This conclusion is further fortified and compelled bysthe mostSrrecentt seq. amendments to that law in L. 1985 c . 516, although we are satisfied that municipal designation of historic districts and sites the zoning and planning powers in New Jersey long before cthose lamendments. (3 ) It is generally accepted that such historic designation ordinances are, in essence, zoning ordinances. Although an historic district ordinance is in essence a zoning ordinance, under the usual zoning ordinance the property owner is free guidelines and limitations, to erect the type of structure hewithin desirests stated with an historic district ordinance the property owner is limited to whatile he can make of the already existing structure. Rathkopf, The Law of Zoning and Plannin (Emphasis supplied) Historic preservation has been classified, as aspect E . 8of, aesthet0icstin5-2 zoning. See McQuillan, Mun. Corp. , (3d Ed. 1986) s 25 . 31 . Aesthetic considerations are proper subjects to be considered in exercise of the planning and zoning powers. See Home Builders League of So. Jersey, Inc. v. T Berlin, 81 N. J. 127, 145 n. 4, 405 A.2d 381 1979Westfield Sales of v. 521 A.2d 1336 COPR. (C) WEST 1988 NO CLAIM TO ORIG. U. S. GOVT. WORKS R 1 OF 3 P 19 OF 26 ALLSTATES P Town of Westfield, 129 N. J- Super. 528, 535-539, 324 A. 2d 113 (Law Div. 1974) . THE 1975 LEGISLATION T1. J. S.�1 . 40: 55i) ?n ,,ne(;�,z.ivocally provides, under the heading of 1 - __'_u _".L Dvara ana boara of Aujustment, " that any power expressly authorized by the Municipal Land Use Law to be exercised by a planning board or boaf•d of adjustment "shall not be exercised by any other body, except as , otherwise provided in this act. " (Emphasis supplied) Under N. J. S.A. 40: 55D-28, the planning board is given authority to adopt or amend a master plan to guide the use of lands within the municipality in a manner which protects the public health and safety and promotes the general welfare. Among the elements to be presented in the plan, as recognized in the 1975 act, are: "A statement of objectives, principles, assumptions, policies and standards upon which the constituent proposals for the physical, economic and social development of the municipality are based; and "A community facility showing the location and type of educational or cultural facilities, historic sites . . . including their relation to surroundingareas. "N. J. S.A. 40: 55D-28(b) (1) and (6) . (Emphasis supplied) Under N. J. S.A. 40: 55D-4, " 'Historic Site , means any buildin or property that is significant in the history, g, structure, area or culture of this State, its communities or the Nation land thas, beenhogy soldesignated pursuant to this act (FN3 ) 521 A.2d 1336 COPR. (C) WEST 1988 NO CLAIM TO ORIG. U. S. GOVT. WORKS R 1 OF 3 P 20 OF 26 ALLSTATES P FN3 . Earlier, in 1966, the Legislature also afforded to municipalities the power to acquire historic sites by gift, purchase or condemnation. N. J. S.A. 40: 60-25 . 53 . N. J. S.A. 40: 55D-6 defines " 'Public Area' to include 1) public parks, playgrounds, trails, paths and often recreational areas;space; (3 ) scenic and historic sites; . . . . " ( (Emphasis suppli other public open Thus, even prior to L. 1985 c . 516, the Legislature specifically recognized historic designation as a part of the planning functions to be exercised under the land use powers of the municipality and expressly prohibited any power authorized to a planning board to be exercised otherwise then as provided in the Municipal Land Use Act. This was consistent with the constitutional grant of power to local municipalities to adopt zoning ordinances. N. J. Const. , ( 1947) , Art. IV, s VI , par. 2 . (4) The trial judge correctly noted that the HISTORIC ORDINANCE does have an impact on the use of property, because the owner of HISTORIC designated land cannot use his property for all purposes permitted by the ZONING ORDINANCE. It has long been recognized that use restraints must be general and uniform in a particular district, see, e. g. ,g• , Roselle v. Wright, 21 N. J. 400, 409, 122 A. 2d 506 ( 1956) , and that municipalities have no power to zone except 521 A.2d 1336 COPR. (C) WEST 1988 NO CLAIM TO ORIG. U. S . GOVT. WORKS R 1 OF 3 P 21 OF 26 ALLSTATES P as delegated to them by the Legislature under the ZONING enabling act. Taxpayers Assn of Weymouth Tp. V. Weymouth Tp 1016 ( 1976) . Planning and ZONING powers may not beexercised bye indirection; the exercise of these functions "must needs be in keeping with the principles of the enabling statutes. " Reid Development Corp. V. T Hills, 10 N. J. 229, 238, 89 A. 2d 667 1952Although o o of Parsippany-Troy ur provides that the powers granted to municipalities mugstbe liberallyion construed (N. J. Constitution, Art. IV, s VII , par. 11) this constitutional mandate "constitutes no warrant for (municipalities) the operation of a statute where the Legislature has not the conditions on orized expressly or by implication the imposition of such conditions . " Magnol either ia Development Co. V. Coles, 10 N. J. 223 , 227, 89 A. 2d 664 ( 1952) . See also Kligman V. Lautman, 53 N. J. 517, 537, 251 A. 2d 745 (1969) . In Lusardi v. Curtis Point Prop. Owners Ass 'n, 86 N. J. 217, 226, 430 A. 2d 881 ( 1981) the Supreme Court restated the strong New Jersey policy that, Local governments have the power to zone only through legislative delegation of theState ' s Police power. N. J. Const. ( 1942) Art. IV, s VI , par. 2 . This delegation of power is currently embodied in the Municipal Land Use Law, N. J. S.A. 40: 55D-1 to -92 . " In Lusardi , the Court noted that PRESERVATION of the environment from destruction was a policy properly effectuated through the ZONING power, id. at 229 n. 3 , 430 A. 2d 881 . Pisc.i.tell_i V. Tp. Comm. of Scotch Plains. jol 521 A. 2d 1336 V11" �-J Vvnbl ly88 NO CLAIM TO ORIG. U. S.R 1 OF 3 P 22 OF 26 C�OVI • WORKS N. J. Super. 589 59g ALLSTATES p authorization, an ORDINANCE2de274 (Law Dovan9A8) , held ) , held that absent statutory authority to disapprove buildingArchitectural Review Board final otherwise complied with all building nrequirements aesthetland ZONING ORDINANCE, grounds, where the owners INVALID exercise of the municipal ZONING power (citing State of Missouri rel . Magidson v. Henze, 342 S.W.2d 261 E, was an Most recently in PRB Enterprises Inc (Mo.Ct.App. 1961) , i ex N. J. 1, 518 A. 2d 1099 ( 1987 v• South Brunswick Planning Board, 105 ordinance which delegated to �the elocal ePlanning board me Court held thower municipal zoning otherwise permitted use, based upon its subjective evaluationoofeim act traffic congestion, was an invalid delegation of zoning Court recognized that the Municipal Land Use Law P on power. The municipality to delegate to its planning board discretion, through ted the to a mechanism of the "conditional use, to determine the sites upon which those uses may be developed, subject to ordinance standards of and definiteness. " Significantly, "sufficient certainty Municipal Land Use Law is the sole source uOf authort has rity for impositionain made of the conditions upon permitted uses, and that the municipal P n of nondelegable power to enact zoning ordinances thereuunderoisr the gexxcllusive for determining permitted uses of land in a municipality. PRB id. at - A.2d 1099 , means 7 8, 518 521 A.2d 1336 COPR. (C) WEST 1988 NO CLAIM TO ORIG. U. S. GOVT. WORKS R 1 OF 3 P 23 OF 26 ALLSTATES P (5) Thus by legislative recognition and judicial interpretation, rest , on the nature and use of property have consistently the umbrella of the land use laws which delegate restrictive powers restrictions derogation of common law, to municipalities to e been required to fall under regulating enact g in the nature and buildings extent of and sttheir uuctures zonin ordinances and�thecnaaure andtheir extent°oftthetuses of land . . . " N. J. Const. (1947) Art. IV, s VI grant that municipalities derive , par. 2 . It is under this zoning community and its environs to Po to control physical development of a community V. Chesterfield T promote its social and economic well being. See Bedminster TCh 11 N J p• ' 23 N. J. 117, 128 A. 2d 473 (1957 Bedminster 194, 93 A. 2d 378 (1953 ) � Fischer V. P 121, 170 A. 2d 249 A ) , Metzdorf V. Rumson, 67 New Jersey has endeavored to (avoid lfractionalization of Planning functions. The wisdom of this unitarya P ed b and zoning considering the potential for local conflict, ifmforay bexample, o e were delegated historic designation powers by ordinance; one local body environmental preservation district designation Powers; a second, independent ordinance and comprehensive plan had marked for development lthe le tsame he osite districts designated by the special bodies. THE sites or 1985 AMENDMENTS In 1985, the Legislature removed COPR. C y question as to historic site and district 521 A.2d 1336 ( ) WEST 1988 NO CLAIM TO ORIG. U. S. y enacting R 1 OF 3 GOVT. WORKS P 24 OF 26 designation b ALLSTATES p Law. ng the L. 1985 c. 516 amendments to the Municipal Land Use N. J. S.A. 40:55D-2 j . now specifically and districts as part of the Purposes ofnthedes Landh promotion of historic sites Use Law. defines "Historic district" and "Historic site. " "Historic sit A. s "any-4 real property, man-made structure, natural object or confguration„or an portion or group of the foregoing "any master plan as being of historical,�harcheological,ave been fcultural, scenormally iceo in thearchitectural significance. " Under N. J. S.A. 40: 55D-28 b r Power to incorporate D- the Master (10) ' the local Planning board is preservation plan element a g given ( ) indicating the location, significance A historic utilization and means for preservation of historic sites and historic districts, and b identifying � Proposed historic. ( ) identif in the standards used to assess worthiness for site or district designation ;� = g",iiin ordinance itself may designate historic sites or historic districts regulate them and for'this regulation. "Designation and pregulation rovide lPursuant gn rto thiia ds subsection , shall be in addition to such designation and regulation as the zoning guidelines may otherwise provide. " p (Emphasis supplied ning ordinance municipal body, by modification to its zoning ordinance, may superimposesuperimposesthe e 52.1 A.2d 1336 COPR. (C) WEST 1988 NO CLAIM TO ORIG. R 1 OF 3 U. S. GOVT. WORKS P 25 OF 26 ALLSTATES P "historic" designation upon existing zoning designations and regulations but only under authority provided by the Land Use Law. The 1985 amendments also provide authority for the ' by ordinance for establishment of an historic preservation commissionwithlde important recommendatory, advisory and reporting powers. N. J. S .A. 40:55D-10 through 112 . 7 (7) (8) Middletown led the way in recognizing the importance of historic district and site protections for the present and for Posterity. W very little modification, it can bring its ordinances within the statutor ith delegation, if it so chooses. (FN4) Unfortunatel Y yessence of the Middletown Historic Ordinance is to confer Powers upon eitsrLandmarks Commission which have never been authorized by the enabling act. It is therefore invalid FN4. Periodic scrutiny of its master plan and zoning regulations is a statutory duty of every municipality. Levin v. T Hills, 82 N. J. 174, 181 n 3 , 411 A.2d 704. p' of Parsippany-Troy Our determination makes it unnecessary to consider whether the 1985 amendments should be prospectively or retroactively applied Ordinance. However, even if our analysis had beenn based tonlygonhthosetoric amendments, the "time of decision rule" recognized in Kruvant v. Mayor & 521 A.2d 1336 COPR' (C) WEST 1988 NO CLAIM TO ORIG. U. S. GOVT. WORKS R 1 OF 3 P 26 OF 26 ALLSTATES P Council of Tp. Cedar Grove, 82 N. J. 435, 440,Readington Tp. , 37 N. J. 271, 279, 181 A.2d 150414( 1962) , woug (ld here pand rHohl ate v. require that our interpretation of the ordinance be consistent with the to current legislative expression. (9) At oral argument, it was suggested by Middletown' s attorney for the first time that its special charter from the Legislature afforded powers not necessarily possessed by municipalities organized under Title 40. have the legislative grants of power in the charter and see no basis forW finding read that Middletown possesses any unique authority to delegate its municipal zoning and planning powers other than as set forth in the Municipal Land Use Act. CO Middletown has had and continues toN have lbroad authority to of its goal to preserve historic districts and landmarks, but this in aid achieved by means of the Municipal Land Use Law, in harmony goal must be legislate expressed legislative policy. Y with the Accordingly, the judgment of the trial court is affirmed. END OF DOCUMENT You are now signed off WESTLAW. Before completing this research session, We need to know whether to save your last search result. Summary of Your Most Recent Search: Date: 03/15/88 Time: 12 : 50 PM Identifier: HPZ Database: ALLSTATES Documents retrieved: 3 Query: ZONING /P HISTORIC /P ORDINANCE /P PRESE. . .