Individual Condominium Unit Owners Cannot Sign Protest Petitions Objecting To Proposed Zoning Ordinances

by:  C. John DeSimone, III

In a recent decision, the Appellate Division applied the idea of “speaking with one voice” to condominium unit owners in a way that might not sit so well with those owners.  In Jennings v. Borough of Highlands, the Appellate Division ruled that individual condominium unit owners cannot sign protest petitions objecting to proposed zoning ordinances.  Rather, because the Condominium Act defines the land upon which the condominium owners have their units as “common elements,” and permits the condominium association to oversee and administer those interests, only the condominium association has the right to protest a proposed zoning ordinance.  The ruling clarifies whose “protests” are to be counted when reviewing a protest petition.  This is important because an ordinance against which a proper protest petition has been lodged can only be passed if two-thirds of the governing body of the municipality vote to approve it.  This super-majority is a significant increase over the normal majority required for approval.

 As a result of the Jennings decision, condominium associations that receive notice of a proposed zoning change should evaluate whether a protest should be lodged or if a sufficient number of unit owners would desire such a protest to be lodged.  From the standpoint of a municipality or developer urging the adoption of the ordinance, care should be taken to address the interests of any association whose property would be included within the proposed change.

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