On March 14, 2011, The Superior Court of New Jersey, Appellate Division issued an opinion wherein it was concluded that individual condominium unit owners do not enjoy the same measure of protest participation accorded other land owners by the Municipal Land Use Law (MLUL).

The Borough of Highlands is a community association with over 5,097 people residing in the development. A group of local residents drafted and circulated a protest petition entitled "Objection Petition to Proposed Zoning Ordinance Amendment to Modify Section 21-89 MH Mobile Home Residence District 0-07-07 to Permit Construction of High-Rise Towers on Shadow Lawn Park". A long, protracted litigation followed.

The Appellate Division analyzed the Condominium Act, and opined that the decision whether to engage in an MLUL protest rests in the Association, not the individual unit owners. Furthermore, the Court found that only owners of “lots or land” may protest under the MLUL, and the statute does not permit persons who "merely have an interest in real property to execute a protest petition". Because individual condominium owners do not own their common elements outright, their individual signatures cannot vitalize a valid protest. Instead, due to the "hybrid" interest established by the Condominium Act, it is the condominium association that must speak on behalf of the lots or land under its management and control.

If you have any questions regarding this article, or any community association law issue, please contact Alyson E. Galusha at Mark & Galusha, LLC by filling out the form on our contact us page or by calling 908-626-1001.