PLANLAND, LLC v. THE TOWNSHIP OF DEPTFORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PLANLAND, LLC and LAND APPROVALS

GROUP, LLC,

Plaintiffs-Appellants,

v.

THE TOWNSHIP OF DEPTFORD and

THE PLANNING BOARD OF THE

TOWNSHIP OF DEPTFORD,

Defendants-Respondents.

_________________________________________

July 9, 2014

Argued May 5, 2014 Decided

Before Judges Harris and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-626-11.

Kenneth E. Meiser argued the cause for appellants.

Jesse M. DeBrosse argued the cause for respondent Township of Deptford (Long, Marmero & Associates, LLP, attorneys; Mr. DeBrosse, on the brief).

Dembo & Saldutti LLP, attorneys for respondent Deptford Township Planning Board, join in the brief of respondent Township of Deptford.

PER CURIAM

Plaintiffs appeal from a summary judgment which dismissed their complaint challenging a zoning ordinance as arbitrary, unreasonable, and capricious, because it reduced the number of housing units that could be built on a tract of land they own. We conclude that there are contested material issues of fact, and therefore the motion judge erred in granting summary judgment.

I.

Plaintiffs, Planland, LLC, and Land Approvals Group, LLC, are the owners of a 158-acre tract of land, known as the Bankbridge tract, in Deptford Township. Since Deptford Township began zoning in 1950, the Bankbridge tract has been zoned as either an Agricultural Residential (AR) district, which permitted the construction of single family detached residences on one acre lots, or R-40, which reduced minimum lot sizes from one acre to forty thousand square feet.

While the district's zoning regulations have remained largely consistent since 1950, an overlay district did affect the zoning district at various points. In this regard, the Planned Unit Development (PUD) of the Unified Development Ordinance was created, which allowed for increased density. In the 1980's under the PUD, plaintiffs received approval to construct 1,391 housing units on the Bankbridge tract. Of these planned units, 278 homes were built at a density of three-and-a-half units per acre. Relying on the approval to build approximately 1,113 additional housing units on the remaining 158.3 acres, plaintiffs made significant investments such as a pumping station, the relocation of Bankbridge Boulevard, and the installation of a culvert due to the Boulevard's relocation. Sometime thereafter, plaintiffs' approval to build the approximately 1,113 additional housing units expired before they could be constructed.

In 2002, pursuant to N.J.S.A. 40:55D-89, defendant Deptford Planning Board re-examined its Master Plan, and the Deptford Township Council passed ordinance 0-20-02, which removed the overlay district, because it determined that the PUD no longer accomplished the goal of the Master Plan. This alteration reduced plaintiffs' development potential of the remaining 158.3 acres from the initially estimated 1,113 housing units to approximately 137 single family units on 40,000 square foot lots.

The Bankbridge tract has approximately 1,900 feet of frontage on Bankbridge Road with an estimated 150 feet of frontage along Glassboro Road. Specifically, within Block 399, Lots 32 and 52 are cultivated land with wooded lands located along the property's western, southern, and eastern boundaries. Mapped wetlands exist within these wooded areas along a tributary terminating at the Monongahela Brook that traverses the site's southern and eastern sections creating environmentally sensitive land. The tract's northern parcel contains approximately 7.3 acres of wetlands occupying 8% of the land.

In addition, within Block 398 (south side of Bankbridge Road), Lots 4, 5, 6, 8, and 17 are located north of the Monongahela Brook, as Lot 4 contains Monongahela Lake. For the most part, Lots 17 and 6 are wooded except for limited cleared and developed areas in both locations. Mapped wetlands are located to the south of the site along the Monongahela Brook stream corridor, a portion of which extends into the southern portion of Lots 4 and 5. Small wetland areas are located in the northern part of Lots 4 and 17. In general, 15.2 acres, or 22% of Bankbridge's southern parcel, are wetlands and open water.

As of September 2011, the neighboring properties surrounding the Bankbridge tract were described as:

1. The properties to the north, along, Weybridge Court, Pennshire Court, Burgundy Court and Woodvale Lane include approximately ninety twins on lot sizes of approximately 4,500 square feet. Other properties, between the Monongahela Lake and Bankbridge Road have been approved with lots as small as 11,250 square feet.

2. The properties east of the site (along Trellis Lane and Parasol Place) adjacent to Bankbridge Road and Tanyard Road have been developed with 148 lots with an approximate density of six units per acre.

3. Property to the east, along Tanyard Road, has been developed as a sixty-five unit affordable housing community at an approximate density of 3.6 units per acre.

4. There is an age restricted community (along Tall Pines Drive) to the southeast of the property with access to Tanyard Road and Salina Road. This community has been developed with lot sizes of approximately one-half acre.

5. Lot sizes to the west, in Wenonah Borough, along Senaca and Mohawk Drive are generally less than 15,000 square feet.

In April 2011, plaintiffs filed a complaint in lieu of prerogative writs against Deptford and the Planning Board alleging that the zoning ordinance change for the Bankbridge tract is arbitrary, capricious, and unreasonable. Plaintiffs sought to have the property re-zoned to allow for a higher density development permitting multi-family dwellings. It was also alleged that the New Jersey Constitution and the Fair Housing Act, N.J.S.A. 52:27D-301 to -329.19, were violated because the ordinance required developers in the R-40 zone to provide low and moderate income housing without any density bonus.

Following discovery, defendants filed a motion for summary judgment. Defendants contended that the zoning ordinance advances the purpose of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-2(e), "to promote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment[.]" Specifically, the defendants asserted the zoning ordinance provides housing choices that serve local residents and the regional population based on affordability, location, status, type, and size achieved through the master planning and zoning ordinance implementation process. Defendants argued that the zoning ordinance allows for adequate acreage to accommodate at least two neighborhoods thereby satisfying the uniformity clause of N.J.S.A. 40:55D-62(a). Defendants further asserted that the ordinance satisfies N.J.S.A. 40:55D-2(c) because it provides "adequate light, air and open space." It also advances N.J.S.A. 40:55D-2(g) by providing sufficient space for a variety of residential uses according to its environmental requirements to meet the need of all New Jersey citizens. Furthermore, the ordinance does not conflict with the development of neighboring municipalities as provided by N.J.S.A. 40:55D-2(d). Lastly, the ordinance is claimed to be substantially consistent with the land use plan element and the housing plan element of the Master Plan.

To support their position, defendants relied upon the reports of its expert, Brian Slaugh, P.P., A.I.C.P., who opined that requiring larger lots in the Bankbridge tract is consistent with the MLUL because Deptford has an imbalance of smaller residential lots in comparison with larger lots and "there is no basis for the [p]laintiffs' assertion that Deptford has a future land use plan with an overabundance of larger lots." According to Slaugh, the new ordinance's lower densities on the land fulfilled the "Master Plan objective for the preservation of woodland during site development" and would maintain sensitive environmental lands that are located on the property on the land. Lastly, Slaugh contended that low density development in the Bankbridge tract conforms with the character of the land where there are scattered agricultural uses.

In opposition to defendants' summary judgment motion, plaintiffs relied upon the opinions of their expert, Art Bernard, P.P., who asserted the zoning ordinance change to larger lots for a R-40 zone is without a rational basis given "the property is surrounded by higher density housing" and "bisected by county roads designed to move traffic from one community to another."1 Bernard also claimed that houses on the larger lot sizes, referred to as executive housing, are inconsistent with the efficient use promoted by the State Development and Redevelopment Plan (SDRP), and advances no legitimate planning purpose. Bernard further contended that the re-zoning is inconsistent with the character of the area and N.J.S.A. 40:55-2(g), "which provides for the zoning of property 'according to their respective environmental requirements in order to meet the needs of all New Jersey citizens.'" (emphasis in original).

The motion judge granted summary judgment in favor of defendants noting the zoning ordinance is presumed to be valid, and found that the ordinance is reasonable because it advanced "more than one purpose of the MLUL - preservation of the environment and open space, promotion of a variety of residential uses, and the promotion of consistency within the neighboring municipalities." It was also determined that "[t]his is not a case involving extreme downsizing or extreme environmental concerns." The trial judge acknowledged that "two conflicting expert reports" were presented, but disagreed with the analysis set forth in the plaintiffs' expert report.

This appeal followed.

II.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge under R. 4:46. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167, (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31. (App. Div.), certif. denied, 189 N.J. 104, 912 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995). We accord no deference to the motion judge's conclusions on issues of law, Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 336, 378, (1995), which we review de novo. Dept. of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).

In this appeal, plaintiffs contend that under Brill, as the non-moving party, they were not given "the benefit of all favorable inferences available in the record" and defendants were not entitled to summary judgment because there were genuine issues of material facts raised by Bernard's expert report. Citing Riggs v. Twp. of Long Branch, 109 N.J. 601, 611 (1988), they also argue that even though the Deptford zoning ordinance advances one or more of the purposes of the MLUL, the ordinance should have been found arbitrary and invalid because it conflicts with other purposes of the MLUL.

A zoning ordinance is presumed to be valid unless it is established that "the ordinance is 'clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.'" Manalapan Realty, L.P., supra, 140 N.J. at 380, (quoting Bow & Arrow Manor, Inc. v. Town of West Orange, 63 N.J. 335, 343 (1973)). This presumption is overcome if a court determines that the zoning ordinance does not advance the purposes of the MLUL, is not reasonably related to the purposes, or if it conflicts with other purposes of the MLUL. Sartoga v. Borough of West Paterson, 346 N.J. Super. 569, 579 (App. Div. 2002) (citations omitted). Thus, we have held:

[I]f a party challenging the validity of a zoning ordinance presents evidence that could support a finding that the ordinance violates the principles of sound zoning embodied in the MLUL, an evidentiary hearing must be held to afford both the party challenging the ordinance and the municipality an opportunity to present expert testimony relevant to a determination of its validity.

[Id. at 579-80 (citing Bow & Arrow Manor, Inc. v. Town of West Orange, supra, 63 N.J. at 347-49).]

Here, plaintiffs' expert, Bernard, sets forth numerous contentions in his report and certification in opposition to summary judgment that could support a finding that the rezoning of the Bankbridge tract conflicts with the purposes of the MLUL, thereby invalidating the zoning changes. Bernard contends the rezoning requirement of larger lots is contrary to the MLUL goal to promote the general welfare of all New Jersey residents by providing less housing for the majority of New Jersey households, which are comprised of one or two persons. He also contends the land use pattern surrounding Bankbridge tract, given the infrastructure and absence of environmental constraints, dictates higher density than R-40. This, he asserts, is evident in the property's location in a SDRP Planning Area 2 designation, which targets higher density development. Additionally, he contends the property has no environmental constraints to justify large lot zoning as the woodlands and slopes can be preserved with an efficient land use pattern consistent with the existing character of the area.

In response, defendants contend that the rezoning furthers the statutory purposes of MLUL and does not conflict with the law. They argue it promotes consistency with neighboring municipalities, N.J.S.A. 40:55D-2(d), preserves a variety of residential uses, N.J.S.A. 40:55D-2(g), preserves the environment, N.J.S.A. 40:55D-2(e), preserves open space, N.J.S.A. 40:55D-2(j), and is a design related to this particular site, N.J.S.A. 40:55D-2(k). They also contend that plaintiffs' argument that high-density housing is needed is a Mount Laurel2 claim, which is outside the scope of the present claim that only challenges zoning of a particular property.

We conclude that a trier of fact, considering Bernard's opinions, could find the zoning ordinance "conflicts with . . . [the] purposes of the MLUL, including the 'establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods, communities and regions and preservation of the environment,' N.J.S.A. 40:55D-2(e), . . . [and] 'development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare,' N.J.S.A. 40:55D-2(a), . . . ." Id. at 580.

While defendants' arguments may be a basis for rejecting plaintiffs' challenge to the rezoning of their property, we conclude that due to the material factual disputes raised by plaintiffs' expert there must be a trial to determine whether rezoning of the Bankbridge tract for lower density residential development contravenes the principles of the MLUL and is therefore invalid.

Accordingly, we reverse the summary judgment in favor of defendants and remand for trial. We do not retain jurisdiction.

1 Plaintiffs also submitted certifications by a Professional Engineer/Certified Municipal Engineer, Richard Clemson, and John Butler, Professional Planner/Professional Land Surveyor. However, their opinions are not necessary to address this appeal.

2 S. Burlington Cty. NAACP v. Twp. of Mt. Laurel, 92 N.J. 158, 205 (1983); S. Burlington Cty. NAACP v. Twp. of Mt. Laurel, 67 N.J. 151, 174, appeal dismissed and cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (holding that constitutional obligation exists on the part of municipalities in the exercise of their delegated power to zone, "afford[] a realistic opportunity for the construction of [their] fair share of the present and prospective regional need for low and moderate income housing.")