ELITE DEVELOPMENT, LLC v. MAYOR and COUNCIL of the TOWN OF KEARNY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2911-04T12911-04T1

ELITE DEVELOPMENT, LLC,

Plaintiff-Respondent,

v.

MAYOR and COUNCIL of the

TOWN OF KEARNY, a Municipal

Corporation of the State of

New Jersey and PLANNING

BOARD of the TOWN OF KEARNY,

Defendants-Appellants.

_______________________________________

 

Argued December 19, 2005 - Decided January 11, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. HUD-L-1588-04.

Norma Garcia argued the cause for appellants (Castano Quigley, attorneys; Ms. Garcia, on the brief).

Meryl A. G. Gonchar argued the cause for respondent (Greenbaum, Rowe, Smith & Davis, attorneys; Ms. Gonchar, on the brief).

PER CURIAM

Defendants appeal from an order entered by Judge Maurice J. Gallipoli on February 7, 2005 declaring Ordinances 2004-(0)-11 and 2004-(0)-12 invalid and void because the ordinances were enacted without public notice as required by N.J.S.A. 40:55D-62.1. We affirm.

We briefly summarize the relevant procedural history and facts. On October 28, 2003, the Mayor and Council of Kearny adopted Resolution 2003-(R)-537, which directed the Planning Board (Board) to review and prepare a report on proposed amendments to the Town's zoning ordinance. The resolution instructed the Board to respond to the following questions:

1. Whether the preservation of building designs and architectural history in the Manor Section and other sections of the Town which the Planning Board may designate would best be achieved by an ordinance enlarging specified minimum lot sizes from 50 by 100 feet to 75 by 100 feet or by the establishment of a Historic Preservation Commission pursuant to N.J.S.A. 40:55D-107b, or a statutory alternate thereof;

2. Whether the creation of a new residential zone in the Town Zoning Ordinance with a minimum lot size of 75 feet by 100 feet would be substantially consistent with the land use plan element and the housing plan element of the Master Plan and whether it would be deemed by the Board to be legally sustainable;

3. What the district boundaries in the "Manor Section" or other sections of the Town the Board would recommend for such an amendment, if it were found to be consistent with the Master Plan;

4. Whether the creation of such a zone might be detrimental to the property owners in such a zone because a substantial number of lots would become non-conforming, thereby creating the necessity for Zoning Board approval for many improvements which now need not be submitted to the Zoning Board.

Plaintiff is the owner of a 100' x 100' corner lot in the Town's Manor District. In November 2003, plaintiff filed an application to subdivide the property to create two 50' x 100' lots. The application was deemed complete and capable of review as of January 6, 2004.

The Board retained the firm of Heyer, Gruel and Associates, P.A. to prepare a report in response to Resolution 2003-(R)-537. Susan Gruel, a planner with the firm, submitted a report dated November 26, 2003, in which she recommended against increasing the lot size in the Manor District to 75 x 100 feet because it would create "wholesale nonconformity within the neighborhood" which consisted primarily of lots of 50 x 100 feet.

Gruel stated that the key features that distinguished the Manor District from other neighborhoods in Kearny are the existence of mature streetscapes, buildings generally limited to 2 stories, uniform yard setbacks and detached garages. She asserted that, as presently configured, the regulations for the R-1 district encouraged housing design that is incompatible with the neighborhood. She wrote, "For example, the Ordinance does not count first floor garages in the 2-1/2 story limitation. This encourages the development of homes with large garage doors facing the street. These structures would tend to be higher than most of the homes in the neighborhood."

Gruel proposed that the Manor District be placed in a new R-1M Zone, which would include the general bulk standards of the existing R-1 Zone but would incorporate certain design standards intended to preserve the unique character of the area. She recommended, among other things, that corner lots in the R-1M Zone have two front yards, with a minimum set back of 20 feet or prevailing, whichever is greater; minimum lot frontage of 60 feet; and minimum area of 6,000 square feet.

The Mayor and Council considered Gruel's recommendations at a public hearing on December 3, 2003. In addition, the Mayor and Council conducted public hearings on the proposed ordinances on February 4, 2004, February 9, 2004 and February 10, 2004. The ordinances were adopted at the conclusion of the February 10, 2004 hearing.

Ordinance 2004-(0)-11 placed the Manor District in a new zoning district called the R-1M Zone, which is described as the "One Family Residential - Manor Zone." The ordinance changes the requirements for corner lots that were previously in the R-1 zone. The minimum area requirement for corner lots is increased from 5,000 square feet to 6,000 square feet and lot width is increased from 50 feet to 60 feet. In addition, corner lots in the R-1M Zone must have two front yards of 20 feet each. Ordinance 2004-(0)-12 amends certain sections of the zoning ordinance and establishes new requirements for yards, landscaping and off-street parking in the new R-1M Zone.

Plaintiff commenced this action in the Law Division seeking invalidation of the ordinances. Following a hearing on January 26, 2005, the judge rendered his decision from the bench. He concluded that the ordinances were invalid because they had been adopted without providing notice to affected property owners pursuant to N.J.S.A. 40:55D-62.1. The judge also found that, had statutory notice been provided, the ordinances would be invalid because the restrictions pertaining to corner lots do not serve any purpose of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.

The judge entered an order on February 7, 2005 which invalidated the ordinances and remanded plaintiff's application for subdivision approval to the Board for consideration. Defendants moved in the trial court for a stay pending appeal. The judge denied the motion and on February 25, 2005 filed a written opinion supplementing the January 26, 2005 oral decision. We granted defendants' motion for a stay pending appeal by order filed March 2, 2005.

The MLUL 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 period 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 on 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.

It is undisputed that Ordinances 2004-(0)-11 and 2004-(0)-12 were adopted without providing notice pursuant to N.J.S.A. 40:55D-62.1. On this appeal, defendants argue that: 1) the ordinances were properly enacted pursuant to a general reexamination of the Town's master plan; and 2) proper notice was effectuated pursuant to N.J.S.A. 40:55D-62.1 in the enactment of the ordinances.

We have carefully considered these contentions and thoroughly reviewed the record on appeal. We are convinced that defendants' contentions are without merit. We are satisfied that there is ample factual support for the judge's finding that the ordinances were not adopted as a result of a general reexamination of the master plan. That finding is binding on appeal because it is supported by adequate, substantial and credible evidence. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The judge correctly found that the ordinances are invalid and void because notice of the proposed changes to the zoning ordinance was not provided as required by N.J.S.A. 40:55D-62.1. We therefore affirm substantially for the reasons stated by the judge in his decision from the bench on January 26, 2005 and in his thorough and comprehensive written opinion filed February 25, 2005.

 
Affirmed.

(continued)

(continued)

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