JOHN M. ROCHELLE BUILDERS, INC v. THE PLANNING BOARD OF THE TOWNSHIP OF MORRIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5298-06T25298-06T2

JOHN M. ROCHELLE BUILDERS, INC.,

Plaintiff-Respondent,

v.

THE PLANNING BOARD OF THE

TOWNSHIP OF MORRIS,

Defendant,

and

THE TOWNSHIP OF MORRIS,

Defendant-Appellant.

_______________________________________

 

Argued October 7, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1461-06.

John M. Mills, III, argued the cause for appellant (Mills & Mills, P.C., attorneys; Mr. Mills, of counsel and on the brief).

Martin Newmark argued the cause for respondent (Broderick, Newmark & Grather, attorneys; Mr. Newmark, of counsel and on the brief).

PER CURIAM

The Township of Morris appeals from an order entered by the Law Division on May 9, 2007, which found that the Township's zoning ordinance is arbitrary and capricious as applied to property designated as Lot 12, Block 3702, on the Township's tax map; that Lot 12 shall not be treated as having merged with Lot 1; and any development proposal for Lot 12 as presently configured shall not require subdivision approval. We affirm.

In 1946, Robert S. Rochelle and Elizabeth Ann Rochelle acquired title to an eight-acre tract of property in the Township. At the time, the property was in the "A" residential zone, in which single-family dwellings were permitted on lots with a minimum size of 15,000 square feet.

In the early 1950's, the Rochelles subdivided the eight-acre tract. Almost all of the subdivided lots fronted on Doe Hill Road, and were approximately one and one-half acres in size. The Rochelles retained title to Lot 1. Seven of the lots on Doe Hill Road were developed in the early 1950's; however, Lot 12 remained vacant.

In 1955, the Township enacted a zoning ordinance that placed Lots 1 and 12 in a zone where residential development is permitted on lots of at least three acres. At the present time, Lots 1 and 12 are located in an RA-130 zone, bounded by Mendham Road and White Head Road, and including Doe Hill and Indian Head Roads. This zoning district is surrounded by properties in the open space, government use zone (OS/GU). The zoning requirements applicable to Lots 1 and 12, including the minimum three-acre lot requirement, have remained substantially the same since 1955.

In 1992, the Rochelles re-acquired title to Lot 12. Robert S. Rochelle subsequently conveyed title to Lots 1 and 12 to plaintiff, John M. Rochelle Builders, Inc. Thereafter, plaintiff filed an application with the Planning Board, seeking subdivision approval and variances for the purpose of constructing new single-family dwellings on Lots 1 and 12.

Plaintiff's subdivision application indicated that Lot 1 would conform with all of the Township's zoning requirements other than the steep slope regulations. The application further indicated that Lot 12 required four variances to permit a lot area of 1.48 acres, where three acres is required; lot width of 173.75, where 300 feet is required; depth of 245.89 feet, where 300 feet is required, and front yard setback of 65 feet, where 100 feet is required. Plaintiff also sought relief from the Township's steep slope regulations.

The Board denied the application at its meeting of March 20, 2006, and memorialized that action in a resolution approved on May 1, 2006. The Board determined that plaintiff had not satisfied its burden for variance relief under either N.J.S.A. 40:55D-70(c)(1) or (2).

On May 24, 2006, plaintiff commenced this action in the Law Division seeking reversal of the Board's decision. Plaintiff alternatively alleged that the Township's zoning ordinance was arbitrary, capricious and unreasonable as applied to Lot 12. In addition, plaintiff sought damages for the alleged unconstitutional confiscation of its property.

On October 27, 2006, Judge B. Theodore Bozonelis considered the appeal from the Board's decision denying subdivision approval and variance relief, and placed his decision on the record. The judge found that the Board had not acted arbitrarily or capriciously in denying the application. The judge determined that the Board had properly found that variance relief was not warranted under either N.J.S.A. 40:55D-70(c)(1) or (2). The judge entered judgment on November 13, 2006, in favor of the Board.

Thereafter, Judge Bozonelis conducted a bench trial on plaintiff's remaining claims. On April 24, 2007, the judge placed his decision on the record. The judge concluded that the application of the RA-130 zoning requirements to Lot 12 was arbitrary, capricious and unreasonable. The judge considered the Township's objectives in enacting the zoning requirements, including the three-acre minimum lot requirement, and determined that application of the ordinance to Lot 12 did not further any of the Township's stated objectives. On May 9, 2007, the judge entered an order memorializing his findings. This appeal followed.

The Township argues that the judge erred by finding that application of the RA-130 zoning requirements to Lot 12 was arbitrary, capricious and unreasonable. The Township asserts that the ordinance complies with and advances the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99. The Township further argues that the zoning requirements for the RA-130 zone, including the three-acre minimum lot size, are consistent with the objectives of the master plans adopted by the Township from 1972 through 2000. In addition, the Township argues that the judge erred by declaring that Lots 1 and 12 shall not be treated as a single, merged lot.

We have thoroughly reviewed the record in light of these contentions and the applicable law. We are convinced that the Township's arguments are without merit. We therefore affirm the May 9, 2007 order substantially for the reasons stated by Judge Bozonelis in the decision that he placed on the record on April 24, 2007. R. 2:11-3(e)(1)(A) and (E). We add the following comments.

A zoning ordinance is presumed to be valid and the presumption may be overcome only "by a showing that the ordinance is 'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.'" Riggs v. Twp. of Long Beach, 109 N.J. 601, 610-11 (1988) (quoting Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343 (1973)). "The party attacking the ordinance bears the burden of overcoming the presumption[.]" Id. at 611 (citing Ward v. Montgomery Twp., 28 N.J. 529, 539 (1959); LaRue v. East Brunswick, 68 N.J. Super. 435, 454 (App. Div. 1961)). "Courts should not question the wisdom of an ordinance, and if the ordinance is debatable, it should be upheld." Ibid. (citing Bow & Arrow Manor, supra, 63 N.J. at 343).

Consequently, the courts have a limited role when reviewing the validity of a zoning ordinance. Even so, a court may declare an ordinance to be invalid if the municipality failed to comply with the MLUL when it enacted the measure. Ibid. (citing Taxpayers Ass'n of Weymouth Twp. v. Weymouth Twp., 80 N.J. 6, 21 (1976)). To be sustained, the ordinance must meet certain objective criteria. Ibid. First, the ordinance must advance the purposes of the MLUL that are set forth in N.J.S.A. 40:55D-2. Ibid. Second, the ordinance must 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-62, unless the requirements of the MLUL are otherwise satisfied. Ibid. Third, the ordinance must comply with all constitutional requirements, including "the prohibition against confiscation." Id. at 611-12 (citing AMG Assocs. v. Twp. of Springfield, 65 N.J. 101, 111-12 (1974)). Fourth, the ordinance must be enacted in accordance with applicable statutory and procedural requirements. Id. at 612.

In undertaking this analysis, the court must review "the relationship between the means and ends of the ordinance." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001) (citing Weymouth Twp., supra, 80 N.J. at 21), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002). This review must be undertaken with the understanding that:

the means selected must have [a] real and substantial relation to the object sought to be attained, and the regulation or proscription must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not partake of the offensive character which cause the problem sought to be ameliorated.

[Ibid. (quoting Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251 (1971).]

"Put another way, the fundamental question in all zoning cases 'is whether the requirements of the ordinance are reasonable under the circumstances.'" Ibid. (quoting Vickers v. Twp. Comm., 37 N.J. 232, 245 (1962), appeal dismissed and cert. denied, 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963), modified on other grounds by So. Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 92 N.J. 158, 276-77 (1983)).

Moreover, although a municipality may have pursued legitimate goals in enacting a zoning ordinance, "a landowner may challenge the application of an otherwise valid ordinance to a specific tract of property." Id. at 291 (citing Odabash v. Mayor of Dumont, 65 N.J. 115, 123 (1974)); AMG Assocs., supra, 65 N.J. at 104.

Here, Judge Bozonelis determined that the Township may have had legitimate objectives for enacting the zoning requirements for the RA-130 zone but the Township's objectives would not be advanced by applying those requirements to Lot 12. The judge found that Lot 12 and the other lots fronting on Doe Hill Road are substantially different from other properties in the vicinity. The record supports the judge's findings.

As stated previously, Lot 12 was one of the lots created when the Doe Hill Road section of the Township was developed in the early 1950's. The Doe Hill Road neighborhood was largely built up at a time when the zoning ordinance allowed for the construction of single-family homes on lots of 15,000 square feet. When the zoning ordinance was changed in 1955 to increase the minimum lot size to three acres (or 130,680 square feet), only one of the ten lots on Doe Hill Road satisfied that requirement.

As the judge pointed out in his bench decision of April 24, 2007, the Township had cited various reasons for placing the properties in the Doe Hill Road neighborhood and the immediately surrounding area within a zone with three-acre minimum lots. Those reasons included concern for sanitation due to the absence of a sewer system, preservation of the residential character of the neighborhood, protection of the environment, and preservation of open space. However, as the judge found, changes in the Township since 1955 had eliminated many of those concerns.

Moreover, the judge determined that Lot 12 was unique and did not present the sort of concerns that prompted the enactment of the zoning requirements, including the three-acre minimum lot size. Lot 12 is not an environmentally sensitive property. There are no wetlands, streams, or substantial steep slopes on the site. In addition, the property is not in a conservation or historic overlay zone. The neighborhood is already largely developed with single-family residences on lots that are less than three acres in size, and the area is now served by sewers, obviating the need for larger lots having septic systems. Furthermore, the property is not designated as public open space.

Judge Bozonelis concluded that the Township's zoning regulations for the area were based on "broad brushed goals" and those goals would not be served by applying the RA-130 zoning requirements to Lot 12. The judge's findings are based upon sufficient credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citing Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

The Township also argues that the judge erred by failing to apply the merger doctrine. Again, we disagree. The merger doctrine applies when contiguous undersized lots, fronting upon the same street, come into common ownership. Loechner v. Campoli, 49 N.J. 504, 509-12 (1967). Merged properties are considered to be a single lot for zoning purposes, and approval is required to divide the property into smaller parcels. Ibid. There are exceptions to the merger doctrine. The doctrine is generally inapplicable to back-to-back lots that front upon different streets. Chirichello v. Zoning Bd. of Adj. of Monmouth Beach, 78 N.J. 544, 553-54 (1979). However, the Chirichello exception does not apply when a structure is built on adjacent back-to-back lots and the structure straddles the line between the lots. Bridge v. Neptune Twp. Zoning Bd. of Adj., 233 N.J. Super. 587, 595 (App. Div. 1989). Subdivision approval is required to divide the merged lot into smaller parcels "as long as the structure remains on any part of both lots." Ibid.

Plaintiff has conceded that Lot 12 merged with Lot 1 when the Rochelles re-acquired Lot 12 in 1992. Indeed, plaintiff acknowledged the merger of the lots when it sought subdivision approval of the property. Nevertheless, we agree with the trial judge's view that the issues raised in this case do not turn upon the application of the merger doctrine.

The central issue here is whether the Township's zoning restrictions are arbitrary, capricious and unreasonable because those restrictions precluded plaintiff from constructing a single-family residence on the portion of the property designated as Lot 12. Indeed, with the exception of the steep slope requirements, Lot 1 met all of the RA-130 zoning requirements for the construction of a single-family residence but Lot 12 did not. Thus, the fact that Lots 1 and 12 may have "merged" has no direct bearing upon whether it was arbitrary, capricious and unreasonable to apply the RA-130 zoning requirements to Lot 12, thereby precluding plaintiff from constructing a single-family home on that site. In other words, "merger" of the lots may have triggered the need for subdivision approval, but it was the application of the RA-130 zoning restrictions that precluded the development of Lot 12.

We have considered the other arguments raised by the Township and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

We note that Lots 1 and 12 are essentially back-to-back lots with frontage upon different streets. After the lots came into common ownership, they were treated by the owners as a single lot and a detached garage was built over the line dividing the two lots. However, the record shows that the garage has been removed. Thus, under Bridge, the merger doctrine may not apply.

(continued)

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A-5298-06T2

November 3, 2008