BEAZER HOMES CORPORATION v. TOWNSHIP OF EAST GREENWICH and EAST GREENWICH TOWNSHIP PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1962-06T11962-06T1

BEAZER HOMES CORPORATION,

Plaintiff,

v.

TOWNSHIP OF EAST GREENWICH and EAST

GREENWICH TOWNSHIP PLANNING BOARD,

Defendants.

___________________________________

ROBERT BOTTO and CATHERINE BOTTO,

Plaintiffs-Respondents,

v.

TOWNSHIP OF EAST GREENWICH and EAST

GREENWICH TOWNSHIP PLANNING BOARD,

Defendants-Appellants.

___________________________________________

 

Submitted October 22, 2007 - Decided:

Before Judges A. A. Rodr guez and Collester.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket Nos. L-1080-04 and L-1097-04.

Dale T. Taylor, attorney for appellants.

A. John Falciani, attorney for respondents.

PER CURIAM

The Township of East Greenwich (Township) and the East Greenwich Township Planning Board (Board) appeal from the November 1, 2006 final judgment in favor of Beazer Homes Corporation (Beazer), the contract purchaser of property owned by Robert Botto and Catherine Botto (Landowners), invalidating Township Ordinance 10-2004 and granting preliminary major subdivision approval. We affirm.

In November 2003, Beazer filed an application seeking major subdivision approval consistent with the Township Zoning Code in effect at the time. The objective was to subdivide the parcel owned by the Landowners into fifty-one lots. Beazer and the Landowners sought no variances because the Zoning Code permitted, as of right, the proposed subdivision. The application was deemed complete on March 19, 2004. Therefore, the Board had 120 days to make a decision. See N.J.S.A. 40:55D-61 (providing that failure of a planning board to act within the period prescribed "shall constitute approval of the application."); see also Neu v. Planning Bd., 352 N.J. Super. 544, 552-53 (App. Div. 2002).

In March 2003, the Township initiated an omnibus reexamination of its Master Plan, consistent with N.J.S.A. 40:55D-89. Contemporaneously, the Township had been in the process of revising its Master Plan along with the necessary modifications to its zoning code. The Board prepared ordinances consistent with the new Master Plan and forwarded them to the Township Committee, which is the Township's governing body.

At the April 27, 2004 meeting, the Township Committee adopted Ordinance 10-2004, which revised the zoning code in order to bring it into conformance with the Master Plan. At that same meeting, over eighty persons, including the Landowners, filed a petition objecting to Ordinance 10-2004. Specifically, the protest petition stated:

This petition and signatures hereunder represent opposition to the proposed Ordinance amending Title 16.60.040 of the Municipal Code of the Township of East Greenwich. Specifically, we oppose the amendment of minimum lot sizes within the RR district currently being debated by the East Greenwich Township Committee. If adopted, the proposed zoning changes will unnecessarily restrict our freedom to sell property and irrevocably cause undue economic hardship. I hereby affix my signature below as a landowner in the RR zone who is opposed to such zoning changes.

One of the central disputes in this appeal is whether this protest was to all of Ordinance 10-2004 as the respondents contend, or only the minimum lot requirement in the RR district, as the Township and Board contend.

The Township Solicitor determined that the petition was valid and binding, pursuant to N.J.S.A. 40:55D-63. Because the protest was valid, a supermajority of the Township Committee, sixty-six percent, was required to adopt Ordinance 10-2004. The Township Committee had adopted the ordinance by a vote of three to two when at least four affirmative votes were required. The Township Committee informed the residents that the ordinance, to the extent that it increased the minimum lot size, did not pass. However, the other portions of the ordinance did pass. Accordingly, the Township Committee referred the increase in minimum lot size back to the Board for further review and analysis. On June 11, 2004, the Township Committee adopted Ordinance 12-2004, which further modified the terms of the zoning code.

Thereafter, Beazer's application was finally heard. The Board denied the application because it failed to meet the new standards of Ordinance 12-2004.

Beazer filed an action in lieu of prerogative writs seeking a determination that Ordinance 12-2004 was invalid as a result of the Township's failure to comply with N.J.S.A. 40:55D-26 and -64. Shortly thereafter, the Landowners filed their own action in lieu of prerogative writs, alleging the same cause of action. These actions were consolidated.

Cross-motions for summary judgment were filed by all parties. The judge heard oral argument and ruled in favor of Beazer and the Landowners. The judge stated in his September 30, 2005 order that Ordinance 10-2004 in its entirety was invalid by virtue of the protest and the lack of approval by a supermajority. The judge remanded Beazer's application to the Board for consideration based on the zoning in effect when the application was originally submitted. The Township moved for a stay pending appeal. The judge denied the stay. Beazer moved to dismiss the appeal, contending the Township's appeal was interlocutory. We granted this motion. Beazer Homes Corp. v. Twp. of East Greenwich, No. M-1722-05 (App. Div. January 9, 2006).

Back in the trial court, Beazer moved to enforce litigant's rights, arguing that the Township had failed to abide by the September 30, 2005 order, which had not been stayed. The judge granted Beazer's motion to enforce litigant's rights, ordering the Township to take action with Beazer's application at the January 2006 Board meeting or to schedule a special meeting. The Township moved for a stay. We denied this motion. Beazer Homes Corp. v. Twp. of East Greenwich, No. M-1983-05 (App. Div. January 9, 2006).

On January 17, 2006, the Board considered Beazer's application, but took no final action because it required additional documentation. Thereafter, on January 24, 2006, the Board passed Ordinance 1-2006, which imposed the "Fair Share" housing obligations of the New Jersey Council on Affordable Housing's (COAH) Round Three regulations upon all land developments for which no preliminary subdivision approval had previously been granted. Five months later, the Board approved the application. However, it required Beazer to conform to the COAH Round Three requirements pursuant to Ordinance 1-2006.

Beazer moved to exercise the condition, arguing that it should be exempt from COAH Round Three obligations. Judge Waters issued an order entering final judgment in favor of Beazer, finding that:

The Planning Board of East Greenwich Township repeatedly delayed approval and hearing on plaintiff's subdivision application ostensibly for the reason that the said party to this litigation was either seeking a stay of the Court's prior Order and/or a Notice of Appeal with the Appellate Division of the Superior Court of New Jersey. Additionally, counsel for the said Planning Board argues that the application could not be heard as numerous other applicants were "in the queue."

This Court finds that the Planning Board's Motion for Stay as well as the application for Appellate Review does nt excuse defendant's failure to place the matter on the agenda following the Court's oral Order of August 12, 2005. In addition, this Court finds it unimaginable that all applications referred to by defense counsel as being "in the queue" would have predated the filing of plaintiff's application in November of 2003.

This Court specifically finds that the delay in reviewing and approving plaintiff's application for major subdivision approval was solely a result of the Township's inexcusable delay in dealing with the provisions of Ordinance 1-06 imposing COAH Round Three Fair Share Housing Obligations upon plaintiff would be grossly unfair and inequitable.

The judge directed that Beazer should only be required to comply with COAH's prior Round Two obligations.

The Township and Board appeal from the November 1, 2006 order contending that the judge erred, as a matter of law, by ruling that the valid protest petition "invalidated all of ordinance 10-2004, and not just the protested part." Specifically, the Township and Board argue that the ruling is contrary to the plain language of the statute and Ordinance 10-2004 had a severability clause that effectively severed the protested part of the ordinance from the remainder of the ordinance. We disagree.

The principle of severability does not apply unless, and until, the governing body follows the proper procedure in adopting ordinances. See N.J.S.A. 40:55D-26; N.J.S.A. 40:55D-62 to -63. If a municipality proposes an amendment in a zoning district, it must provide notice of the hearing and opportunity for protest. N.J.S.A. 40:55D-63 states, in pertinent part: such amendment or revision shall not become effective following the filing of such protest except by the favorable vote of two-thirds of all the members of the governing body of the municipality. N.J.S.A. 40:55D-63. If there is no favorable vote of two-thirds of all the members of a governing body, then the ordinance must go back to the planning board for reevaluation. N.J.S.A. 40:55D-64. If a revision or amendment is necessary that is inconsistent with the Master Plan, there must be a referral to the planning board for a report. N.J.S.A. 40:55D-26.

Here, the Township Committe adopted Ordinance 10-2004 by a simple majority, despite a valid protest. This action was invalid. The effect of this invalidity is that Ordinance 10-2004, in its entirety, is invalid.

Moreover, the Township Solicitor recommended that the ordinance be sent back to the Board as there appeared to be substantive changes sought. The Township Committee, nevertheless, adopted Ordinance 10-2004, despite apparent inconsistencies with the Master Plan, and without sending it back to the Board for review and revision. Following the partial adoption of Ordinance 10-2004, the Township Committee admitted that the ordinance was inconsistent with the Master Plan. It then enacted Ordinance 12-2004, which was drafted so as to reconcile those inconsistencies.

The Township and Board also contend that the judge erred, as a matter of fact "by holding that there were modifications made to Ordinance 10-2004 prior to its adoption (when in fact no such modifications ever took place), that should have caused said ordinance to be referred back to the Planning Board rather than being adopted." We disagree.

From our thorough review of the record, we conclude that the Township and Board misunderstand the judge's use of the terms "amendment" and "modification[s]." It is true that the judge stated:

But very frankly there were modifications to it, there were amendments made to it. There were - there was a protest. There were all these other factors that I believe would require it to go back to the Planning Board . . . .

 
The judge was referring to the undisputed fact that the Township Committee removed and exercised the protested portion of Ordinance 10-2004, acknowledging the protest petition's validity. This change, although not an "amendment" within the meaning of N.J.S.A. 40:55D-64, was one of the bases for the judge's ruling that the entire ordinance was invalid.

Affirmed.

This order was amended on November 1, 2006 to correct clerical errors.

Beazer has notified us that it has decided not to participate in this appeal. It has withdrawn its application for subdivision approval and has not assigned any of its plans, permits or approvals to the Landowners. The Landowners are opposing this appeal.

(continued)

(continued)

9

A-1962-06T1

June 5, 2008