CITIZENS UNITED TO PROTECT THE MAURICE RIVER AND ITS TRIBUTARIES, INC. v. TOWNSHIP OF MAURICE RIVER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2142-04T12142-04T1

CITIZENS UNITED TO PROTECT

THE MAURICE RIVER AND ITS

TRIBUTARIES, INC.,

Plaintiff-Appellant,

v.

TOWNSHIP OF MAURICE RIVER,

Defendant-Respondent.

_______________________________

 
Telephonically argued December 1, 2005 - Decided January 24, 2006

Before Judges Lintner, Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. CUM-L-1233-03.

Todd W. Heck argued the cause for plaintiff-appellant (Basile & Testa, attorneys; Mr. Heck, on the brief).

Edward F. Duffy argued the cause for defendant-respondent.

PER CURIAM

Plaintiff, Citizens United to Protect the Maurice River and its Tributaries, Inc., appeals from an order entered in the Law Division on December 7, 2004, dismissing its complaint in lieu of prerogative writs challenging the validity of a zoning ordinance amendment adopted by defendant, Township of Maurice River. Judge Fisher dismissed plaintiff's action determining that plaintiff failed to overcome the presumption of validity of the ordinance. We affirm substantially for the reasons stated by Judge Fisher in his oral decision of November 15, 2004.

Plaintiff, a nonprofit environmental organization, is intimately involved in promoting and supporting the preservation of the Maurice River watershed. The watershed was designated by Congress as part of the National Park Service Wild and Scenic Rivers System in 1993, and supports a diverse and flourishing ecosystem, which serves as habitat to a significant rare and endangered species population.

In May 2002, the Township Committee of Maurice River adopted Ordinance No. 491, a comprehensive land use ordinance entitled "The Maurice River Township Land Development Regulations Ordinance" (LDR Ordinance). The ordinance prohibited more than one principal use per lot, and permitted telecommunication cellular towers as conditional uses in certain zoning districts. On October 1, 2003, the Maurice River Township Land Use Board (Board) adopted a resolution reciting its extensive review of defendant's LDR ordinance and zoning map; determined that certain corrections and revisions were necessary in order to bring the LDR ordinance and zoning map into accord with defendant's most recent Master Plan review; and recommended that the Township Committee adopt the proposed amendment to the LDR ordinance attached to the Board's resolution. The proposed amendments were broad in scope, and included changes to such items as definitions, wetland issues, off-street parking, visibility at intersections, irregularly-shaped lots, hedges, walls and fences, home occupations, animals, and cellular towers. Several sections of the proposed ordinance concerned cellular towers.

Section 6.1 entitled "Use Regulations" was amended to read:

No more than one principal use shall be located on one lot, except for forestry, agriculture, horticulture, fish and wildlife management, recreational development on agricultural lands, and local telecommunications facilities as permitted by [Section] 9.20.

Section 9.20C entitled "Local Communications Facility" was deleted and replaced with Section 9.22, "Wireless/Local Communication Facilities" which read in pertinent part:

A. Purpose. The purpose of this Section is to establish provisions regulating the number, location, design and construction of local communication facilities - including towers, antennas, equipment sheds, and appurtenances in order to accommodate the personal and commercial needs of the citizenry and its environment. The goals of this Section are:

1. To provide for adequate wireless communications throughout the entire Township while minimizing the total number of communications towers;

2. To minimize the impact of local communications facilities, particularly towers, on areas of scenic and cultural significance to the Township and the region;

3. To encourage the location of such towers as are necessary in non-residential and non-recreational areas;

. . . .

D. Height Limitations and Location Requirements for New Local Communications Facilities

. . . .

3. All Zoning Districts

. . . .

g. Notwithstanding the provision of Section 6.1, "Use Regulations," whenever proposed for a non-residentially zoned property, a local communication facility may be so located as provided herein this section even if there is already a permitted primary use and/or accessory uses on said property, provided however, that said existing primary use or the existing accessory use(s) are not a freestanding local communications facility or tower. The permitting of a local communications facility in such cases is intended to reduce the effect of such facilities on the landscape by utilizing already developed lands.

On or about September 24, 2003, the Township Committee introduced the amending Land Use Ordinance as Ordinance No. 534. On November 20, 2003, the Township Committee conducted a public hearing on the ordinance. Plaintiff appeared and objected to the adoption of the ordinance because it would permit construction of cellular towers in close proximity to the Maurice River, such that they would not only be visible throughout the corridor, but would also disrupt the vistas and canopies. At the close of the public hearing on that date, the Township Committee adopted Ordinance No. 534. Plaintiff instituted the present action on December 4, 2003, challenging defendant's adoption of the ordinance. Defendant filed its answer on February 25, 2004. The parties submitted the matter to the court by cross-motions for summary judgment.

Plaintiff argued that defendant overreached in violation of legislative policy in adopting Ordinance No. 534, permitting construction of commercial wireless communication cellular towers as permitted principal uses on properties in certain zoning districts, notwithstanding that there may already exist a permitted principal or accessory use on the same property. Plaintiff contended that the reasons proffered for adoption of the amendments concerning cellular towers were illusory because there was no discussion before the Board regarding land conservation in conjunction with cellular towers at the time the Board adopted its resolution recommending changes to defendant's LDR Ordinance.

Defendant countered that the proposed ordinance came directly from the Board, and represented the Board's intent. Defendant argued that the provision permitting cellular towers as second principal uses on properties in certain zoning districts is a valid exercise of land use control because cellular towers, unlike other commercial uses, are passive in nature, and therefore, may be treated differently in terms of zoning requirements. Defendant asserted that regardless of the provision of the amendment, a company will still need to meet other requirements of the LDR Ordinance, e.g., demonstrating that there is a "gap in coverage," and that "there [is] no better place for it." Lastly, defendant argued that regardless of where a tower is placed, it will rise above the canopy and be visible, such that the most land-conservative location for a cellular tower is where another use already exists.

On November 15, 2004, Judge Fisher dismissed plaintiff's complaint determining that although a cellular tower could not constitute an "accessory use" to a "primary use," that defendant could enact an ordinance permitting a "mixed-use concept" or a "multiple principal use concept." The judge determined that there is a difference between a "benign use" and an "intensive use," and determined a cellular tower to be more benign than intense. Judge Fisher concluded that the difference was sufficient to justify the provision for cellular towers as a second principal use, and that plaintiff failed to overcome the presumption of validity of Ordinance No. 534. A confirmatory Judgment of Dismissal was entered on December 7, 2004.

On appeal, plaintiff argues:

POINT I.

THE TRIAL COURT MATERIALLY ERRED IN DETERMINING THAT BECAUSE A CELL TOWER IS THEORETICALLY MORE `LAND-BENIGN" THAN OTHER TYPES OF COMMERCIAL USES, THE COURT DID NOT NEED TO CONSIDER THE TOWNSHIP'S STATED BASIS FOR THE ADOPTION OF THE SUBJECT ORDINANCE AMENDMENTS, NOR THE CONFLICTS WITH OTHER ORDINANCE PROVISIONS AND SUPERVENING FEDERAL POLICY CREATED THEREBY.

POINT II.

THE STATED PRETEXT BEHIND THE SUBJECT ZOING AMENDMENT -- TO PRESERVE OPEN SPACE -- WAS ILLUSORY AND NOT SUPPORTED BY THE RECORD.

POINT III.

THE TRIAL COURT COMMITTED MATERIAL ERROR BY DISREGARDING THE FACIALLY INCONSISTENT PORTION OF THE TOWNSHIP ORDINANCE REQUIRING RESIDENTIAL OCCUPANTS OF THE SAME LOT UPON WHICH SUCH COMMERCIAL USES WILL BE OPERATED TO BE INTEGRALLY INVOLVED IN THE OPERATION OF THAT COMMERCIAL FACILITY.

POINT IV.

THE ORDINANCE'S ALLOWANCE OF TWO "PRINCIPAL" USES UPON A SINGLE BUILDING LOT IS PLAINLY CONTRARY TO FUNDAMENTAL PRINCIPLES OF ZONING AND ORDINARY PRINCIPLES OF STATUTORY CONSTRUCTION AND COMMON SENSE APPLICATION, AND THE TRIAL COURT MATERIALLY ERRED IN DISTINGUISHING APPLICABLE PRECEDENT IN THAT REGARD.

We have considered these contentions in light of the record and applicable principles of law, and reject them. We affirm substantially for the reasons set forth by Judge Fisher in his thorough and well-reasoned decision of November 15, 2004. R. 2:11-3(e)(1)(A),(E).

 
Affirmed.

A "conditional use" is defined as: "[A] use permitted in a particular zoning district only upon a showing that such use in a specified location will comply with the conditions and standards of the location or operation of such use as contained in the zoning ordinance, and upon the issuance of an authorization therefor by the planning board." N.J.S.A. 40:55D-3.

We were advised at time of oral argument that the defendant does not have a separate Board of Adjustment, but rather has a single Planning Board consisting of nine members that exercises jurisdiction of both the Planning Board and Zoning Board of Adjustment. N.J.S.A. 40:55D-25c. Defendant's "Land Use Development Regulations Ordinance" refers to the Board as the "Land Use Board."

(continued)

(continued)

9

A-2142-04T1

January 24, 2006