98 N.J.L.J. 568
June 26, 1975
Corporate Appearance Before Planning
Board Other Than Through An Attorney
The question raised by general inquiry to the Committee is whether an unauthorized practice of law results when a corporate officer or other non-attorney processes an application on behalf of a corporation to a municipal planning board. A similar issue was presented to the Committee on the Unauthorized Practice of Law and resolved in Opinion 13, 98 N.J.L.J. 27 (January 9, 1975).
In this instance the Committee's attention has been drawn to N.J.S.A. 40:55-1.7 entitled "Notice of Hearings; Minutes." The section begins as follows:
"Whenever a hearing is required under any section of this chapter, before action by a planning board, notice of the hearing shall be published. ...
The footnote after this section indicates that the hearing referred to may be one required by any section of the statute between N.J.S.A. 40:55-1.1 to N.J.S.A. 40:55-52.
The third paragraph of N.J.S.A. 40:55-1.7 requires that "the names of the persons appearing and addressing the board, and of the persons who appear by attorney, agent or other representative, ..." must be recorded by the secretary in the official minutes. The Legislative intent expressed by this provision is not an effort by the Legislature to exempt a corporation from the prohibition against the corporate practice of law under R. 1:21-1(c). The quoted portion of this paragraph is merely a directive to the secretary of the board advising the secretary what must be recorded in the official minutes in order to comply with the statute.
N.J.S.A. 40:55-1.15 deals with those situations in which the planning board may be empowered by subdivision ordinance to waive full notice and hearing and thus grant favorable approval to a subdivision application by referring to specific requirements outlined in the subdivision ordinance passed by the municipality. In those instances, the application by the corporation and the action by the planning board is purely ministerial and does not require the appearance of an attorney. The Committee's opinion would be the same in those instances where a corporation must, under local ordinance, obtain site plan approval from a planning board prior to the construction of a building otherwise permitted under the zoning ordinance and where the approval under the ordinance can be given without the necessity of hearing based solely upon the documents filed by the applicant. Such applications are analogous to a corporate application for a gaming license or a temporary license to sell alcoholic beverages at a corporate picnic or other social function.
However, where under local ordinance a hearing is required with reference to subdivision approval or for site plan approval, it must be realized that planning boards sometimes exact conditions for approval which require legal ability on behalf of the applicant to determine whether said conditions are within the board's authority to exact or are illegal. For example, such issues may be raised as whether an applicant may be compelled to dedicate land for future municipal school use and, if so, under what conditions; whether an applicant may be compelled to pay a fee in lieu of the dedication of land for school purposes; whether an applicant may be compelled to make off-site improvements such as extending public water mains to reach the tract of land in question; etc. So too, with reference to site plan approval, it takes legal skill to interpret whether a condition attempted to be imposed by the planning board sits within the power granted and specific conditions enumerated by the existing ordinance.
While appearances before a planning board most frequently deal with applications for subdivision or site plan approval, "hearings" are also called for in master plan formulation (N.J.S.A. 40:55- 1.10), determinations of blighted areas (N.J.S.A. 40:55-21.4), recommendations as to adoption of zoning ordinances (N.J.S.A. 40:55-33), and changes or amendments to zoning ordinances (N.J.S.A. 40:55-35).
At any such hearing envisioned by N.J.S.A. 40:55-1.7, it is anticipated that testimony of engineers, architects and other witnesses will be required. And, thus, as the Committee stated in Opinion 13, supra. 98 N.J.L.J. 27, legal knowledge and skills are required in presenting evidence, examination and cross-examination of witnesses, qualifying expert witnesses, understanding the admission and exclusion of evidence, construction and application of statutes, ordinances and decisions. Thus, the public interest requires that representation of a corporation before a planning board be by an attorney skilled in those arts.