Featured Case

A City Unconstitutionally Saddles Builders with the Cost of Recreational Facilities

Builders League of South Jersey v. Egg Harbor Township

New Jersey law requires that municipal governments provide for and fund general public projects and services such as schools, fire stations, and recreational facilities. The Legislature granted municipalities statutory authority to require pro rata contributions from developers, but the instances where such exactions are permitted are limited to those street, water, sewer, and/or drainage improvements that are necessitated by new development.

Egg Harbor Township adopted an ordinance requiring developers to construct tot lots, basketball courts, or neighborhood parks for use by the general public. The South Jersey Builders Association sued the Township claiming that the Township exceeded its authority by adopting and enforcing the ordinance for the specific purpose of forcing residential developers to supplement the Township’s already adequate stock of recreational facilities. The trial court upheld the ordinance. The appellate court reversed and held that the Township did not have legislative authority to adopt the ordinance.

At the appellate court, the Builders League argued that even if the court were to uphold the trial court’s conclusion that the Township has general authority to impose the recreational requirements outlined in the ordinance, the court should invalidate the ordinance. The Township failed to establish an essential nexus or perform the individualized assessment necessary to establish that rough proportionality exists between the requirements of the ordinance and the recreational needs of new residential developments. The record shows that the Township was unable to establish either a need for additional recreational facilities and/or open space or, even if such a need existed, that the operation of the ordinance adequately or logically addressed such needs.

The Court of Appeals did not address these issues, since it held that the Township did not have authority to enact the ordinance.  The New Jersey Supreme Court accepted review of the decision, and PLF addressed the constitutional issues of nexus and rough proportionality in its amicus brief. In July, 2009, the New Jersey Supreme Court upheld the lower court ruling and held for the property owners.