the adopting or prohibiting ordinance offers the Township any additional protection from a land use perspective." It does not cut and dry protect you more. But it can give the applicant and their attorneys more to fight with. That is why Mr. Bressi is against this ordinance. He feels the ordinance is not consistent.
Mr. Rogers thought the ordinance gave the possibility of a data center in the future and he thought the language in the Master Plan allowed for new interpretations of businesses to be considered. Dr. Campbell confirmed that no, it does not allow for the consideration because it is not named. It is not mentioned. However, the ordinance does mention it. Mr. Rogers stated there is a section in the Master Plan that says it will in the future consider the needs and economic benefits to the Town. Is that a consideration? Dr. Campbell replied that we need to remember where we live. We live in the center of the Pinelands. The chances of the Pinelands Commission and the DEP ever even considering that in this area is a non-starter. But this would go to the Zoning Board. It would not come to the Planning Board. It is a matter of zoning and they already are protected against that development. We do not say you cannot build an airport, you cannot build a nuclear waste pit or a ten-story building. They are not identified there specifically for a reason because anything that is not permitted is not permitted.
Mr. Shea took it back to first principles. In an ordinance review like this, what the Planning Board does is called a consistency review. And just to keep it simple, forget about the language of the statute, the Board has to just make a finding as to whether or not the ordinance presented to them is consistent or inconsistent with the language of the Master Plan. That is just at its very foundational first principle elements. That is what the Board does when it comes down to what is in the ordinance. There are two different types of uses. One is a non-permitted use, which is when we are at the Planning Board here, you see a list of uses permitted and then conditionally permitted and typically, anything that is not permitted, conditionally permitted is considered not permitted. This is going beyond the non-permitted aspect. It is prohibiting the use specifically. The legal consequences or ramifications of that are no matter what happens, it is a D1 variance. So whether you are a non-permitted use or you are a prohibited use, you have to file for what is called a D1 variance in order to build it or get an approval for it and that goes through the Zoning Board. Whether it is a non-permitted use or a prohibited use does not change the legal test. It is still the D1 test. The D1 test is a lot like the C2 variance that we see here with additional legal hurdles. What happens with the non-permitted use, you have the positive and negative prongs. The negative prong has you have to make sure that it is not substantially detrimental to the Master Plan, zoning plan and neighborhood scheme. That is for regular non-permitted. If you prohibit something, what it does is that it adds an additional detriment to the zoning and ordinance negative prong. So, it does not change the legal standard, but the weight of evidence that needs to be presented by a professional planner is increased. The legal standard does not change, but the weight of evidence is increased. Those are the legal ramifications of the ordinance that is presented in front of us. The legal standard itself, the D1 does not change. The evidentiary weight that needs be presented by the applicants' professionals does. When it comes down to what the Board has to do, they have to take a look at the Master Plan, put this ordinance up against it and identify whether it is consistent or inconsistent with the language as contained in the Master Plan. It is truly a planning function of this Board.