In New Jersey, our planning boards and land use boards all consist of regular members as well as alternate members. Alternate members are those members who participate when there is an absence or disqualification of a regular board member. Pursuant to NJSA 40: 55-D23 the question arises, when there is an open position on a land use board because of a vacancy that has not been filled, are alternates permitted to vote? In the case of Save Hamilton Open Space and North Crosswicks Friends of Open Space versus Hamilton Township Planning Board, a case decided in March of 2023, the trial court held when a member has not been appointed, an alternate may not vote in the stead of that member.

Lieberman Blecher and Sinkevich was proud to represent the challenging plaintiffs in this lawsuit. At issue was a master plan reexamination report in which Property which had been protected because it was in the RCC zone, a zone in which rural preservation is highly encouraged, was recommended to be rezoned into an area in which an almost unlimited amount of uses would have been permitted. There was substantial testimony provided by all sides and when a vote was taken the reexamination was authorized by a one vote majority.

Plaintiffs alleged that the vote was improper because there was a vacancy on the board and an alternate should not have been allowed to vote in the place of the vacant position. Plaintiffs argued that vacancy did not give rise to a situation in which alternates could vote.

This was contrasted with an absence of a duly appointed board member, or perhaps a disqualification of a duly appointed board member, in which an alternate could vote. But here there wasn’t an absence of an appointed board member or a disqualification, but rather there wasn’t anyone in that position at all because an appointment had not been made.

The trial court agreed with our clients and reversed the approval of the master plan reexamination and remanded the case to the planning board for a proper vote. The court ruled that it was improper to permit an alternative to cast a vote under these circumstances. When that remand is finally scheduled, the court gave the board discretion to take additional testimony if that is deemed to be appropriate and necessary.

According to Michael Gan, one of the lawyers who represented the plaintiffs from Lieberman Blecher and Sinkevich “The rule of law matters. In cases where we have procedures that make clear who can vote and who cannot vote, it is important that those procedures be faithfully acknowledged and satisfied. In this case, they were not. And we believe that the court acted well within its justification and authority by remanding so that the process can be properly followed.”