REALTY SITES v. TOWNSHIP OF CLARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2381-07T32381-07T3

REALTY SITES, a New Jersey

partnership and VILLA

CONTRACTING COMPANY,

Plaintiffs-Respondents,

v.

TOWNSHIP OF CLARK and

TOWNSHIP COUNCIL OF THE

TOWNSHIP OF CLARK,

Defendants-Appellants,

and

THE PLANNING BOARD OF

THE TOWNSHIP OF CLARK,

Defendant-Respondent.

_______________________________________

 

Argued November 18, 2008 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2750-05.

Joseph J. Triarsi argued the cause for appellants (Triarsi, Betancourt, Walsh & Wukovits, L.L.C., attorneys; Mr. Triarsi, of counsel; Richard D. Huxford, on the brief).

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, P.C., attorneys for respondent, The Planning Board of the Township of Clark, join in the brief of appellants.

Respondents Realty Sites and Villa Contracting Company have not filed a brief.

PER CURIAM

The Township of Clark and the Township Council appeal from an order entered by the Law Division on December 10, 2007, which invalidated Ordinance 05-14, an enactment that amended the Township's zoning ordinance. For the reasons that follow, we reverse.

I.

In April 2003, Heyer, Gruel & Associates (HGA), community planning consultants, undertook a reexamination of the Township's master plan and provided the planning board with a report entitled, "Master Plan Update." The consultants reviewed the existing conditions of the Township; its demographics; its vacant land; the properties that are constrained by environmental conditions; the residential, commercial and industrial uses; and the land devoted to public and quasi-public use. HGA recommended that the Township make certain changes to its master plan.

HGA proposed the creation of a new "Downtown Village" (DV) zoning district, suggesting that such a district replace the existing "Neighborhood Commercial" and "Commercial Office" zones between Washington Street and Broadway from Denman Avenue and Benjamin Street to the Township's border with Rahway. The report stated:

[t]his zone should permit uses such as offices, restaurants, retail shops and private clubs, similar to the current zoning. No home occupations or home offices should be permitted in this district. The [principal] effects of this zone would be to limit the size of businesses, create a higher density, and only allow uses that encourage foot traffic. Residences will be permitted only on the second and third floors over retail. Drive-thru banking will be discouraged. Gas stations will not be permitted.

HGA further recommended that the "Commercial Office" zone at Madison Hill Road and Raritan Road be reduced and changed to "Neighborhood Commercial." HGA also suggested that the Township (1) decrease the size of the "Commercial Office" zone at Westfield Avenue and Raritan Road; (2) reduce the amount of land dedicated to "Neighborhood Commercial" uses on Raritan Road between Central and Westfield Avenues; (3) retain the "greater part" of the "Commercial Office" zone along Brant Avenue as a location for small offices; (4) and convert some of the "Commercial Neighborhood" and "Commercial Office" areas along Westfield Avenue to residential use.

In May 2003, the planning board conducted a public meeting at which it considered and approved the master plan update. In September 2003, the Township adopted revisions to the master plan based upon the recommendations in the master plan update.

Thereafter, HGA conducted a further examination of the Township's master plan and in February 2004 provided the Township with a "Master Plan Re-examination Report." In that report, HGA noted that components of the Township's master plan had previously been updated with a new "Fair Share Housing Plan" and that certain changes were adopted in 2003 as a result of the master plan update. HGA's 2004 reexamination report therefore addressed the remaining elements of the Township's master plan.

HGA recommended thirteen additional changes to the master plan and the Township's development ordinances. The recommended changes included: construction of another Garden State Parkway interchange south of the Township; improvements to the existing Parkway interchange; formation of a traffic improvement district; establishment of bus service to certain regional destinations; investigation of "traffic calming measures" for residential neighborhoods; improvements to certain roadways and intersections; reviewing the water system to ensure sufficient pressure to service residential and fire needs; and upgrading the stormwater management facilities to the extent required to meet State standards. The Council considered and approved HGA's reexamination report at a public meeting.

In February 2005, Richard O'Connor, the Township's engineer, provided John Laezza, the Township's business administrator, with proposed amendments to the Township's zoning ordinance to implement the recommendations of the 2003 master plan update and the 2004 reexamination report. O'Connor also provided Laezza with a new district zoning map showing the proposed changes. The planning board considered the report at a public meeting.

The proposed ordinance was introduced at a public meeting of the Council on June 20, 2005. The ordinance provided for the creation of the DV district and detailed the uses permitted in that zone. The ordinance established, among other things, the area, yard and building dimensions for the DV district. The ordinance also set forth zoning changes for specific properties that were identified by their respective lot and block numbers. On July 18, 2005, the Council conducted a public hearing on the proposed amendments. Following the public hearing, the Council adopted the ordinance.

II.

Plaintiffs commenced this action on July 29, 2005, seeking to invalidate the ordinance. At the time they filed the complaint, plaintiffs were the owners of various properties in the Township. They claimed that they were affected by the rezoning of their properties. Plaintiffs alleged, among other things, that the ordinance was invalid because: (1) the notice published prior to its adoption failed to meet the requirements of N.J.S.A. 40:49-2.1; (2) the Township did not mail notice of the proposed ordinance to affected property owners as required by N.J.S.A. 40:55D-62.1; and (3) the Township violated N.J.S.A. 40:55D-62 by failing to set forth the differences between the ordinance and the Township's master plan in a resolution.

Plaintiffs thereafter moved for summary judgment. On October 5, 2007, after hearing oral argument, the trial court denied plaintiffs' motion with regard to their arguments that the published notice and the Council's resolution were legally deficient. On October 19, 2007, the court heard further argument on the issue of whether N.J.S.A. 40:55D-62.1 required the Township to provide affected property owners with personal notice of the ordinance before its adoption.

Thereafter, the trial court issued a written opinion in which it concluded that N.J.S.A. 40:55D-62.1 required the Township to provide affected property owners with notice of the proposed ordinance and, because it failed to provide such notice, the ordinance was invalid. The court found that the exemption in N.J.S.A. 40:55D-62.1 for zoning changes adopted as a result of a periodic reexamination by the planning board of the master plan was inapplicable.

The trial court observed that certain zoning changes had been proposed in the 2003 master plan update and the 2004 reexamination report but those reports did not recommend changes to the zoning for specific properties. The court stated that:

[t]he May 2003 meeting only discusses in a very general way the Master Plan and the potential for a downtown area and a re-examination report. The Master Plan and the 2004 Re-Examination Report themselves do not contain specific recommendations of the type that were reflected in the actual ordinance. The Master Plan and the Re-Examination Report only contain general, broad objectives for the Township. This type of information would not reasonably apprise all affected property owners . . . of the impending re-zonings.

The court found that the Township's reexamination process did not afford members of the public an opportunity for substantial input into the proposed zoning changes. The court concluded that, in the reexamination process, property owners potentially affected by zoning changes had not been provided with general public notice that was substantially equivalent to the actual notice required by N.J.S.A. 40:55D-62.1.

The court entered an order on December 10, 2007, that granted plaintiffs' motion for summary judgment and declared Ordinance 05-14 invalid. This appeal followed.

III.

Appellants argue that the trial court erred by invalidating Ordinance 05-14. Appellants argue that, because the ordinance made changes that were the result of the Township's reexamination of its master plan, the Township was not required by N.J.S.A. 40:55D-62.1 to give affected property owners personal notice of the proposed ordinance. We agree.

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99, states in pertinent part that the governing body shall provide for a general reexamination by the planning board of its master plan and development regulations at least every six years. N.J.S.A. 40:55D-89. The planning board is required to prepare "a report on the findings of such reexamination" and provide a copy of the same to the county planning board. Ibid. The report must state, among other things, "[t]he specific changes recommended for the master plan or development regulations, if any, including [the] underlying objectives, policies and standards, or whether a new plan or regulations should be prepared." N.J.S.A. 40:55D-89d.

The MLUL further provides in N.J.S.A. 40:55D-62.1 that:

Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board pursuant to [N.J.S.A. 40:55D-89], shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district, and located, in the case of a boundary change, in the State within 200 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing.

[Emphasis added.]

We considered N.J.S.A. 40:55D-62.1 in Gallo v. Mayor and Twp. Council of Lawrence Twp., 328 N.J. Super. 117 (App. Div. 2000). There, the municipality adopted changes to the zoning ordinance to implement a new master plan. Id. at 120-21. Although the municipality provided public notice of the hearing at which it considered and adopted the zoning changes, the plaintiffs argued that they were entitled under N.J.S.A. 40:55D-62.1 to personal notice of the proposed ordinance. Id. at 122. The trial court rejected that contention and we affirmed. Id. at 119.

In Gallo, we observed that N.J.S.A. 40:55D-62.1 recognizes a difference between "an amendment to a zoning ordinance" and the "adoption of a reexamined revised master plan resulting in enabling ordinances to implement such revisions." Id. at 125. We stated that:

[t]he former involves compliance with statutory procedures that will generally be time restricted and may well involve public involvement resulting from the specific notice required by the statutes. On the other hand, the master plan review envisioned by N.J.S.A. 40:55D-89 involves . . . extensive public review and analysis by consultants and experts, hearings, general public notice, and in most cases, extensive publicity and notoriety.

[Ibid.]

We additionally observed that, by enacting N.J.S.A. 40:55D-62.1, the Legislature recognized that the public would be informed of the reexamination process and saw no reason to burden the taxpayers with the cost of providing specific notice for zoning changes adopted as a result of that process. Id. at 126. We stated that personal notice under N.J.S.A. 40:55D-62.1 is reserved for "discrete and specific zoning changes that are not part of a Board's reexamination and modification of classifications consistent with them." Ibid.

We next considered N.J.S.A. 40:55D-62.1 in Cotler v. Twp. of Pilesgrove, 393 N.J. Super. 377 (App. Div. 2007). In that case, the plaintiffs' properties were located in a single-family residential district, where one-acre residential lots were a permitted use. Id. at 380. The Township's planning board undertook a reexamination of the master plan and development regulations and adopted a report which concluded that the municipality's zoning ordinance was generally in conformance with the land use element of the master plan. Ibid.

The report stated, however, that attention should be given to certain "specific issues" in order to "'refine and/or reaffirm the Township planning objectives, policies, and standards[.]'" Ibid. The "specific issues" included "updating the boundaries" between the single-family residential areas (SR) and the rural residential (RR) districts, "enhancing the buffers" between the SR, RR and agricultural retention (AR-2) districts, and increasing the lot size in the SR district. Id. at 380-81.

The report also recommended updating the municipality's master plan and land use ordinance. Id. at 381. The updated master plan resulted in certain specific recommendations for boundary and classification changes that were ultimately adopted by the municipality. Ibid. Under the revised zoning scheme, the plaintiffs' properties were placed in the AR-2 zone, which had a minimum two-acre lot size. Ibid. The plaintiffs argued that the ordinance was invalid because they had not been provided with personal notice of the proposed zoning changes which they said was required by N.J.S.A. 40:55D-62.1. Id. at 382.

We held that, under the circumstances, personal notice was not required. Id. at 383-84. We stated that the

amended zoning ordinance under which plaintiffs' properties were rezoned resulted from the recommendations contained in a periodic general reexamination of the master plan. Although the reexamination report did not recommend specific changes in the Township's zoning, it concluded that the land use plan should be revised and specifically recommended that the boundaries of the SR district, in which plaintiffs' properties were located, "should be updated." Moreover, the Planning Board resolution adopting the report recommended that "an update to the Township Master Plan and Land Use Ordinance be undertaken to consider the specific issues identified in the Reexamination Report[.]" Following the adoption of the periodic reexamination report, the Board and its planner engaged in a lengthy review of the Township's zoning, which included work sessions open to the public and public hearings. This review culminated in the Board's adoption of a revised land use element, which recommended numerous changes in the Township's zoning, including a reduction in the size of the SR district and the creation of an AR-2 district with a minimum two acre lot size in the northeast corner of the Township where plaintiffs' properties are located.

[Id. at 384.]

We concluded that "the rezoning of plaintiffs' properties was the product of an ongoing planning process that started with the preparation of the periodic reexamination report and concluded with the adoption of the amended zoning ordinance" that had been challenged by the plaintiffs. Id. at 385. We observed that the rezoning was not "an 'isolated zoning change' affecting only a discrete number of properties, but instead the result of a 'broad-based review of a municipality's entire zoning scheme,' which could be adopted without the personal notice to affected property owners required by N.J.S.A. 4055D-62.1[.]" Ibid. (quoting Gallo, supra, 328 N.J. Super. at 126).

Here, it is undisputed that Ordinance 05-14 was the result of a master plan reexamination process that took place over a considerable period of time and was subject to extensive public review, analysis, general public notice and public hearings. Gallo, supra, 328 N.J. Super. at 125. The ordinance did not involve a "discrete and specific" zoning change but rather numerous zoning changes that were the culmination of a "broad-based review" of the municipality's "entire zoning scheme." Id. at 126.

In its opinion, the trial court found that affected property owners were entitled to actual notice of the zoning changes enacted by Ordinance 05-14 because the master plan update and the reexamination report contained only "general, broad objectives" for zoning changes. We disagree.

We note that the zoning changes implemented by Ordinance 05-14 were largely based on the master plan update. The zoning changes proposed in the master plan update report were not simply "general, broad objectives." Indeed, as we have explained, the master plan update included very specific and detailed proposals for zoning changes in particular areas of the Township.

As we stated previously, the master plan update recommended the creation of the DV district to replace the existing "Neighborhood Commercial" and "Commercial Office" zones between Washington Street and Broadway, from Denman Avenue and Benjamin Street to the Township's border with Rahway. The update also recommended that the Township decrease the size of the "Commercial Office" zone at Westfield Avenue and Raritan Road. In addition, the update recommended the reduction of the amount of land dedicated to "Neighborhood Commercial" uses on Raritan Avenue between Central and Westfield Avenues.

The master plan update also recommended that the Township retain the "greater part" of the "Commercial Office" zone along Brant Avenue as a location for small offices. In addition, the update recommended that the Township convert some of the "Commercial Neighborhood" and "Commercial Office" areas along Brant and Westfield Avenues to residential use.

Thus, while the master plan update did not identify the specific properties that could be rezoned to implement the proposed changes in the master plan, the report set forth detailed recommendations for zoning changes. The master plan update therefore placed property owners on notice that their properties might be placed in the new DV zone or otherwise rezoned as part of the "broad-based review" of the Township's zoning scheme. Gallo, supra, 328 N.J. Super. at 126.

Moreover, as we pointed out in Gallo, the reexamination of a master plan is a "continuous" process that may ultimately result in numerous changes and adjustments to the master plan and land use ordinance. Ibid. Therefore, even if Ordinance 05-14 deviates in some respects from the master plan update and the reexamination report, the Township was not required to provide personal notice to affected property owners because the changes to the zoning implemented by the ordinance were the result of a reexamination of the master plan.

The trial court also found it significant that the amendments to the zoning ordinance drafted by O'Connor were not available for public review and scrutiny. O'Connor's proposed amendments were intended, however, to implement the recommendations in the master plan update and the reexamination report. As noted, the update and the reexamination report were considered at public meetings and had been subject to public review and comment.

We therefore conclude that because the zoning amendments adopted by the Township in Ordinance 05-14 were the result of a reexamination by the Township of its master plan, the Township was not required by N.J.S.A. 40:55D-62.1 to give personal notice of the proposed ordinance to affected property owners. Reversed.

 

We note that, while the appeal was pending, plaintiffs sold their properties in the Township and advised the court that they no longer had any interest in this matter. However, because the Township remains subject to the order invalidating its ordinance, the matter is not moot.

(continued)

(continued)

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A-2381-07T3

January 5, 2009