ROSE HILL ESTATES v. TOWNSHIP OF HADDON et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1443-04T51443-04T5

ROSE HILL ESTATES,

Plaintiff-Appellant,

v.

TOWNSHIP OF HADDON and THE PLANNING

BOARD FOR THE TOWNSHIP OF HADDON,

Defendants-Respondents.

_______________________________________

 

Submitted November 30, 2005 - Decided July 13, 2006

Before Judges Stern, Grall and Lihotz.

On appeal from Superior Court of New

Jersey, Chancery Division, Camden County,

C-57-03.

Madden, Madden & Del Duca, attorneys for appellant (John-Paul Madden, on the brief).

Cofsky & Zeidman, attorneys for respondents

(Donald C. Cofsky, on the brief).

PER CURIAM

Plaintiff, Rose Hill Estates, LLC (Rose Hill), appeals from a final judgment dismissing its action in lieu of prerogative writs and entering judgment in favor of defendants, the Township of Haddon (Township) and its Planning Board (Board). Rose Hill challenged provisions of the Township's zoning ordinance and the Board's denial of two site plan applications. Rose Hill argues in the alternative that amendments to the zoning ordinance affecting its property, which were adopted while its site plan applications were pending, are impermissibly inconsistent with the Township's Master Plan and, if not, should not be applied to its applications given the equities. We affirm.

Rose Hill purchased the subject property after a fire in 2001 damaged the cement factory located on the 3.3 acre parcel of land known as the "Russell Stone Property." The Township demolished the building and imposed a lien in the amount of $190,000. Rose Hill paid the lien and back taxes.

The property is located in an area designated as the "Haddon Avenue Corridor" in the Township's Master Plan, which was adopted on July 1, 1999, after a periodic review required by N.J.S.A. 40:55D-89. One of the major "Strategic Objectives" stated in the plan is encouragement of appropriate development to promote a vital downtown. "Strategic Recommendations" for accomplishment of that goal include "[r]edevelop[ment of] the Haddon Avenue Corridor as a Downtown Main Street district" with a "focus on pedestrian amenities at important intersections," a "downtown streetscape plan," implementation of "various redevelopment recommendations for housing rehabilitation" and "a mixture of downtown housing opportunities."

The Master Plan includes "[a] separate . . . element for the Haddon Avenue Corridor," which is entitled "the Haddon Avenue Corridor Redevelopment Plan." As defined therein, the "Corridor" includes eight separate TRACTS, A-H. The Russell Stone Property is in TRACT C. A general provision, which is applicable to TRACT C and other TRACTS assigned to a downtown residential district, recommends "a variety of housing types, including . . . townhomes, mid-rise apartments [and] senior independent and senior assisted living uses."

A more specific recommendation for TRACT C recommends less variety -- "residential uses, including single family detached, semi-detached, townhouses, garden apartments, and senior assisted and independent living uses . . . ." There is a specific, and narrower recommendation for the Russell Stone Property -- "higher density downtown residential uses, such as townhouses, garden apartments, or senior independent or assisted living."

In November 1999, the Township's Board of Commissioners (Commissioners) revised the zoning ordinance to address the new Master Plan. The Township is organized under "the commission form of government," N.J.S.A. 40:70-1 to 76-27, under which the "board of commissioners" has the "legislative powers." N.J.S.A. 40:72-2. Under the zoning ordinance, Rose Hill's property is in a "'R-D' Residential Downtown" zone. The housing uses permitted in the R-D zone under the zoning ordinance were "single-family detached dwelling units," "senior citizen multi-family development," "mid-rise apartment multi-family units" and "single-family semi-detached and attached development." Twp. of Haddon Camden County Land Use and Dev. Ordinance, 504, C 1 (b)-(c), 504 B 1 (Nov. 1999).

On October 3, 2002, the Board recommended a revised "Redevelopment Plan for the Haddon Avenue Corridor." It suggested allowing only "semi-detached and townhouse units at a density no greater than [ten] units per acre" on the Russell Stone Property.

On the same day, Rose Hill filed its first application for site plan approval. Rose Hill sought site plan approval for a sixty-six unit, mid-rise, multi-family housing development.

The zoning ordinance was not amended to incorporate the Board's recommendation to limit density to ten units per acre, and the Commissioners did not adopt the revised redevelopment plan. See N.J.S.A. 40A:12-7. Instead, on October 29, 2002, the Commissioners introduced a proposed Ordinance 1089 that would eliminate "mid-rise apartment multi-family units" from the list of uses permitted in the R-D zone. The proposed Ordinance 1089 was referred to the Board for review, as required by N.J.S.A. 40:55D-64.

On November 7, 2002, the Board recommended approval of Ordinance 1089. The Board concluded that the proposed amendment was consistent with the Master Plan and with the Board's prior request for the Commissioners to review the Master Plan and zoning ordinance concerning the R-D zone near Haddon Avenue.

On the same day, the Board considered Rose Hill's application for site plan approval. On the basis of a report prepared by the Board's engineer, the Board asked Rose Hill to provide an environmental impact statement.

On December 4, 2002, the Commissioners adopted Ordinance 1089, and on February 10, 2003, the Board denied Rose Hill's application for site plan approval on the ground that the use was no longer permissible and the Board lacked jurisdiction to grant a use variance. See N.J.S.A. 40:55D-60.

On May 8, 2003, Rose Hill filed an action in lieu of prerogative writs challenging the actions.

While the case was pending, on July 11, 2003, Rose Hill submitted a second application for site plan approval authorizing a 112-unit senior citizen multi-family development. On September 4, 2003, the Board commenced but did not complete a hearing on Rose Hill's second application.

On October 14, 2003, the Commissioners introduced Ordinance 1099 to exclude "senior citizen multi-family development" and permit only single family detached and semi-detached homes and townhomes in the R-D zone. On referral from the Commissioners, the Board concluded that the Ordinance was substantially consistent with the Master Plan, which called for a variety of residential developments without specifying densities or heights. Ordinance 1099 was adopted on October 28, 2003.

On January 12, 2004, the Board rejected plaintiff's second application. The Board's decision was based on the fact that the proposed use was no longer permissible.

On April 5, 2004, Rose Hill amended its complaint in lieu of prerogative writs to challenge the Board's denial of its second application and the ordinances amending the zoning for its property.

On September 2, 2004, the trial judge heard testimony and argument on Rose Hill's amended complaint. On October 6, 2004, he delivered an oral decision. He found that the amendments were consistent with the Master Plan, not arbitrary or capricious and properly applied to Rose Hill's applications, which were pending when the Ordinances were adopted. On October 21, 2004, the judge entered an order memorializing his decision to dismiss the complaint and entered judgment in favor of defendants. This appeal followed.

On appeal Rose Hill raises the following arguments for our consideration:

I. THE IMPORTANCE OF THE MASTER PLAN UNDER

THE MUNICIPAL LAND USE LAW.

II. ORDINANCE 1099 IS INCONSISTENT WITH THE

MASTER PLAN.

III. HADDON TOWNSHIP VIOLATED THE PROCEDURES

MANDATED BY THE MLUL WHEN ADOPTING

ORDINANCE 1089.

IV. ORDINANCE 1099 IS INCONSISTENT WITH THE

MASTER PLAN.

V. ORDINANCES 1 089 AND 1099 ARE VOID

BECAUSE THE TOWNSHIP FAILED TO TIMELY

FILE ORDINANCES WITH [THE] CAMDEN COUNTY PLANNING BOARD.

VI. ORDINANCES 1 089 AND 1099 ARE ARBITRARY,

CAPRICIOUS AND UNREASONABLE.

A. CHANCERY DIVISION'S FINDING THAT

ORDINANCES 1 089 AND 1099 WERE VALID

WAS BASED UPON A MISCONCEPTION OF

THE RECORD BEFORE IT.

B. ORDINANCE 1099 IS INVALID.

C. AMENDMENT 1089 IS ALSO INVALID.

VII. EQUITY PRECLUDES THE TIME OF DECISION

RULE.

We consider first Rose Hill's claim that Ordinances 1089 and 1099 are invalid because they are inconsistent with the Master Plan. Our analysis begins with a statement of the controlling law. Any zoning ordinance or amendment to a zoning ordinance relating to permissible uses of land must "either be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements." N.J.S.A. 40:55D-62a. Complete consistency is not required; "the concept of 'substantially consistent' permits some inconsistency, provided it does not substantially or materially undermine or distort the basic provisions and objectives of the master plan." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 384 (1995). Where, as here, the Board has reviewed the amendments, as required by N.J.S.A. 40:55D-26a, and determined that the amendments are substantially consistent with the Master Plan, its "determination . . . is entitled to deference and great weight." Manalapan, supra, 140 N.J. at 383. This court's review is confined "to a determination whether the presumption of validity that attache[s] to the amendment ha[s] been overcome." Id. at 379.

We agree with the trial judge that the presumption of validity is not overcome in this case because the amending ordinances are neither arbitrary nor "substantially inconsistent" with the Master Plan. Fairly read in context, the relevant sections of this Master Plan do not mandate a zoning ordinance that permits all types of higher-density housing referenced. The Master Plan is most fairly read as enumerating permissible alternatives for higher-density housing that will "implement the basic [tenets] of the plan, i.e. economic revitalization and civic improvements along the Township's historic main street." In recognizing numerous options for achieving the ultimate objectives, the Master Plan provides a list of housing alternatives that are consistent with the Plan's objective to revitalize the downtown area by establishing a downtown residential district with amenities for pedestrians and an appropriate streetscape.

We do not view the Master Plan as mandating a zoning ordinance that includes all of the alternatives for higher density housing. The fact that the Master Plan recommends different housing types for different TRACTS and different properties in the downtown residential district suggests an intention to identify options compatible with the goal of higher-density, mixed variety housing rather than a goal to identify types of housing that must be permitted to achieve the ultimate objective of a vital downtown center.

Rose Hill relies on Manalapan for the proposition that a listing of specific examples in a master plan requires a zoning ordinance that includes all of the types listed in the plan as permissible options. Rose Hill overreads dicta in Manalapan, which simply notes that a master plan that includes examples of compatible uses may be helpful when evaluating a claim that the zoning ordinance is inconsistent with a master plan. Manalapan, supra, 140 N.J. at 385 (citing William M. Cox, New Jersey Zoning and Land Use Administration, 40-2 at 581 (1994 ed.)).

The issue before the Court in Manalapan was whether a zoning ordinance excluding the sale of lumber was inconsistent with a master plan providing for "mixed commercial" uses. Manalapan, supra, 140 N.J. at 385. The Court held that the ordinance was not substantially inconsistent with the plan. Id. at 386. The Court did not hold that a zoning ordinance must authorize every specific use listed as compatible with the overall objectives of the master plan.

We cannot conclude that this Master Plan, which lists a variety of housing alternatives compatible with the Plan's general objective of establishing a downtown residential district, requires a zoning ordinance that permits all types of housing rather than the types that in the judgment of the governing body best meet the goal of a vital downtown residential district. Thus, we view this Master Plan as providing a "list[ of] every use which might be considered compatible" with the goal of a vital higher density downtown residential district but not mandating every type on the list. See William M. Cox, New Jersey Zoning and Land Use Administration, 40-2 at 875 (2005 ed.) (suggesting this approach in the drafting of master plans and noting that a "municipality need not include every such use in the zoning ordinance"). The Board and Township read the Master Plan in this manner and reached a decision on substantial consistency between the plan and the ordinance amendments at issue that is not arbitrary and is entitled to deference from this court.

Our determination that the amendatory ordinances are substantially consistent with the Master Plan disposes of two additional issues. Because the amendments are substantially consistent with the Master Plan, Rose Hill's arguments that the amendments are arbitrary and capricious lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). In addition, our finding of substantial consistency makes it unnecessary to address Rose Hill's complaint about the Township's failure to follow procedures that apply only when an ordinance is not substantially consistent with the Master Plan. N.J.S.A. 40:55D-62a; see Willoughby v. Planning Bd. of Deptford, 326 N.J. Super. 158, 165 (App. Div. 1999).

Rose Hill argues that the trial judge erred in affirming the Board's rejection of its applications for site plan approval on the basis of amendments to the zoning ordinance that were adopted while its site plan applications were pending. The law governing post-application amendments to a zoning ordinance is clear and does not favor Rose Hill's position.

A municipality may amend its zoning ordinance while a site plan application is pending even if the amendment is made in response to the application. Manalapan, supra, 140 N.J. at 378-79. The Township was free to change its ordinance after the application was filed. Id. at 379.

Rose Hill contends that the rule in Manalapan should not be applied in this case because the amendments had not been filed with the County Planning Board and were not effective when the Board rejected its applications. See N.J.S.A. 40:55D-16 (amendment to a "development regulation" effective when filed with the county planning board); N.J.S.A. 40:55D-4 (defining "development regulation" to include a zoning ordinance). Again, the governing principles are well-established and support the judge's decision to apply the ordinances as amended on the date of his decision.

As a general rule, on direct review of the actions of those charged with making and enforcing local zoning policy a court should apply the statute in effect at the time of its decision, at least when the legislators intended that its modification be retroactive to pending cases. "The purpose of the principle is to effectuate the current policy declared by the legislative body-a policy which presumably is in the public interest."

[Lake Shore Estates, Inc. v. Denville Twp. Planning Bd., 255 N.J. Super. 580, 589 (App. Div. 1991) (quoting Kruvant v. Mayor and Council of Cedar Grove, 82 N.J. 435, 440 (1980)), aff'd 127 N.J. 394 (1992).]

When necessary "to rectify its zoning ordinance in order to perfect a legislative policy decision therein expressed by it but imperfectly . . . the public interest clearly justifies protection by way of the municipal opportunity to amend its ordinance . . . ." Urban Farms, Inc. v. Franklin Lakes, 179 N.J. Super. 203, 217-18 (App. Div.), certif. denied, 87 N.J. 428 (1981). The issue requires a weighing of "the public interest" and "the nature, extent and degree of the developer's reliance on the state of the ordinance." Id. at 220.

In this case, the Township adopted the amendments in accordance with the requirements of the Municipal Land Use Law but neglected to file them as required by that Law. Consistent with Manalapan, it would have been proper for the Board to apply those amendments to Rose Hill's respective applications had they been effective. The amendments to the zoning ordinance were consistent with the Master Plan and a matter of public importance to development in the area. There is no evidence that Rose Hill changed its position in any way between the dates on which these separate amendments to the ordinance were adopted and the date on which those amendments were filed with the County Planning Board. Accordingly, there was no error in the judge's determination to review the Board's decision as if the amendments were effective on the date of the Board's decision. Rose Hill is free to apply for any variances it may require.

Affirmed.

 

In order to avoid confusion, we note from the outset that this redevelopment plan was never adopted by the governing body as required by N.J.S.A. 40A:12-7. What the Board did here was incorporate into the master plan the goals and recommendations for redevelopment of the Haddon Avenue Corridor that it had previously submitted to the Township in a redevelopment plan.

Because the Master Plan incorporated the redevelopment plan, which had been recommended by the Board but not adopted by the governing body as required by N.J.S.A. 40A:12-7, Rose Hill correctly argues that the redevelopment plan is part of the Master Plan. Thus, when the Board recommended changes to the redevelopment plan, which the governing body did not adopt, those recommendations were not the equivalent of an amendment to the Master Plan. As Rose Hill correctly argues, the Master Plan cannot be amended by the Board through a process other than adoption of an amendment to the Master Plan. See N.J.S.A. 40:55D-28. Of course, if the governing body had adopted a redevelopment plan recommended by the Board after adoption of the Master Plan and zoning ordinance, the redevelopment plan could be inconsistent with the Master Plan and would supersede the zoning ordinance in the redevelopment area. N.J.S.A. 40A:12-7.

(continued)

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A-1443-04T5

July 13, 2006