NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-0843-16T1
MERCK SHARP &
DOHME CORP., a New
TOWNSHIP OF BRANCHBURG,
Argued October 30, 2018 – Decided December 13, 2018
Before Judges Hoffman, Geiger and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-1172-08.
Mark S. Anderson argued the cause for appellant
(Woolson Anderson PC, attorneys; Robyn D. Wright
and Marks S. Anderson, on the briefs).
Christopher John Stracco argued the cause for
respondent (Day Pitney, LLP, attorneys; Christopher
John Stracco and Jennifer Gorga Capone, on the brief).
Defendant Township of Branchburg (Branchburg or the Township)
appeals from the Law Division decision invalidating a 2008 amendment to its
land use ordinance, as applied to plaintiff's property (the Merck property). The
trial court's decision proclaimed a new standard for reviewing the legality of
ordinances that "involve drastic density reductions in growth areas" and do not
adhere to the guidelines set forth in the State Development and Redevelopment
Plan (State Plan), by presuming such ordinances invalid and placing the burden
to justify their necessity on the municipality. Applying this standard, the court
held the Township failed to prove that applying the ordinance to Merck's
property "carries out the purposes of the Municipal Land Use Law" (MLUL).1
We conclude that application of this new standard constituted error; instead, the
trial court should have applied the well-settled standard that presumes zoning
ordinances valid and places the burden upon the challenger. We therefore vacate
and remand for reconsideration under the correct standard.
According to 2007 property tax records, thirty-seven percent of
Branchburg's land is assessed as residential, twenty-six percent is farm assessed
and farm qualified land, sixteen percent is public and public school property,
1 N.J.S.A. 40:55D-1 to -112.
and the remainder is mostly commercial, industrial, or vacant land. The total
size of Branchburg is roughly 12,000 acres.
The Merck property consists of three adjacent tax lots in Branchburg that,
taken together, constitute approximately 206 acres in the central part of
Branchburg. Most of the land in the central part, other than the Merck property,
is dedicated to residential or commercial uses. The Merck property constitutes
the last remaining large, undeveloped parcel in the vicinity. Until 2007, plaintiff
used the property to conduct animal research and testing for veterinary
pharmaceutical drugs. Today, the only functional buildings on the property are
a conference center and a barn. According to the United States Department of
Agriculture, the parcel consists of forty-one percent prime farmland, forty-one
percent farmland of statewide importance, and six percent farmland of local
importance. The entire property is assessed as farmland for tax purposes, and
much of it is currently farmed.
The State Plan designates the Merck property as within "planning area 2,"
which is intended to accommodate much of the State's future growth due to
access to infrastructure supporting development. The entire parcel lies within a
sewer and water utility service area.
As early as 1982, Branchburg zoned the property in the Research Zone.
Branchburg's 1988 Master Plan recommended the Merck property remain in the
Research Zone to allow Merck to continue its ongoing research. In its discussion
of general objectives, the 1988 Master Plan found that the "preservation of the
rural, open-spaced character of the township" is "extremely important and
should be the first goal."
In 1993, Branchburg issued a Master Plan Reexamination Report. The
report recommended rezoning the Merck property for single family development
by placing it in the Low Density Residential Zone (LD Zone). Permitted uses
in the LD Zone include single family residences on one-acre lots, commercial
agriculture, and research farms on tracts of 100 acres or more. Branchburg
implemented the recommendation.
The instant matter arises out of the recommendations made in the 2006
Master Plan Reexamination Report (2006 Report), which the Branchburg
Planning Board adopted. The 2006 Report noted that the goal of preserving the
town's rural character had become "increasingly difficult," and found the three-
acre Agricultural Zone no longer sufficient to maintain the rural ambiance of the
town. The report emphasized the increased importance of preserving open space
The 2006 Report recommended creation of a Resource Conservation
District (RC District) to combine agricultural and other open lands along the
riverfront corridor into a "continuous low intensity/conservation zon e
throughout the Township . . . ." Due to development, the report cited the need
to retain "large contiguous masses of farmland and other undeveloped lands"
and recommended a six-acre minimum lot size, with a residential clustering
component, in the RC District. The report recommended that the RC District
include the Merck property. It also recommended revision of the Master Plan's
vision statement to emphasize the importance of protecting and preserving open
space and farmland, establishing density and intensity standards to relate
development with natural and built infrastructure, preventing sprawl, and
providing housing opportunities for all ages and income levels, among others
In June 2008, Branchburg adopted Ordinance 2008-1093, implementing
the recommendations of the 2006 Report, but changed the name of the RC
District to the Raritan River Corridor District (RRC District). The ordinance
aimed to prevent destruction of the remaining agricultural landscape and rural
character of Branchburg and to protect public investments made to preserve
farmland and open space.
Under the ordinance, permitted uses in the RRC District include single-
family residences, commercial agriculture and home agriculture, public parks,
churches, nursery schools, child-care centers, volunteer fire companies and first
aid or rescue squads, family day care homes, and community residences. The
ordinance requires a six-acre minimum lot size in the RRC District.
The ordinance included the Merck property within the RRC District, thus
downzoning Merck's property from one residence per acre (in the LD Zone) to
one residence per six acres (in the RRC District). The ordinance maintains the
LD Zone for existing residential developments that abut the northwest and
southwest borders of the Merck property.
In August 2008, plaintiff filed a complaint in lieu of prerogative writs in
the Law Division, challenging the rezoning of its property. Following
discovery, the trial court granted partial summary judgment to Branchburg,
dismissing counts which alleged constitutional claims and inverse
condemnation. The court further held that plaintiff was not required to exhaust
administrative remedies, concluding that Branchburg's zoning board lacked
jurisdiction to hear plaintiff's request to restore the previous LD zoning to its
property, rendering administrative relief futile.
The matter proceeded to trial in March 2016. As the parties did not
dispute the essential facts of the matter, the trial consisted solely of expert
testimony and the presentation of documentary evidence. Although the experts
largely agreed on the facts, the conclusions drawn from those facts diverged.
The court issued its ruling in April 2016, entering a judgment in favor of
plaintiff, invalidating Ordinance 2008-1093 as applied to plaintiff's property.
This appeal followed. 2
Branchburg first argues the trial court should have required plaintiff to
exhaust administrative remedies by seeking a variance from the local zoning
board, prior to proceeding in court. It asserts plaintiff's failure to do so requires
dismissal. We disagree.
Except where the interest of justice requires, actions under Rule 4:69 shall
not be maintained when there is a right of review before an administrative
agency available. R. 4:69-5. The requirement for litigants to exhaust
administrative remedies before seeking relief in the courts is well established.
See City of Atlantic City v. Laezza, 80 N.J. 255, 265 (1979); Macleod v. City
The parties thereafter entered into a consent order staying the requirement that
Branchburg rezone the Merck property, pending this appeal.
of Hoboken, 330 N.J. Super. 502, 508 (App. Div. 2000). The requirement
allows administrative bodies to perform their functions without interference
from the courts, ensures the agency with appropriate expertise hears the claim,
and avoids unnecessary litigation. Paterson Redevelopment Agency v.
Schulman, 78 N.J. 378, 386-87 (1979) (quoting Brunetti v. Borough of New
Milford, 68 N.J. 576, 588 (1975)). Accordingly, "there is nonetheless a strong
presumption favoring the requirement of exhaustion of remedies." Brunetti, 68 N.J. at 588.
However, in limited situations a party need not exhaust administrative
remedies. These situations include: 1) when only a question of law needs to be
resolved; 2) when the administrative remedies would be futile; 3) when
irreparable harm would result; 4) when jurisdiction of the agency is doubtful; or
5) when an overriding public interest calls for a prompt judicial
decision. Abbott v. Burke, 100 N.J. 269, 298 (1985) (quoting Garrow v.
Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 561 (1979)).
Generally, landowners must pursue administrative remedies before
challenging zoning ordinances. Griepenburg v. Twp. of Ocean, 220 N.J. 239,
260 (2015). Likewise, a court should typically decline to adjudicate the matter
until the owner has exhausted available administrative remedies. Deal Gardens,
Inc. v. Bd. of Trs. of Loch Arbour, 48 N.J. 492, 497-98 (1967) (quoting Conlon
v. Bd. of Pub. Works, Paterson, 11 N.J. 363, 370 (1953)). "[R]elief should first
be sought by way of variance . . . for in such situations the local administrative
agencies can generally adequately deal with the problem." AMG Assocs. v.
Twp. of Springfield, 65 N.J. 101, 109 n.3 (1974).
A board of adjustment may "exercise only those powers granted by
statute." Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 54 (1998). The MLUL
vests zoning boards with the power to grant variances to permit specific pieces
of property to diverge from ordinance requirements. See N.J.S.A. 40:55D-70(c)
to (d). To obtain a variance, an applicant must demonstrate it "can be granted
without substantial detriment to the public good and will not substantially impair
the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A.
Here, plaintiff did not file for variance relief before initiating the action
in lieu of prerogative writs. However, the trial court held that Branchburg's
zoning board lacked jurisdiction to hear plaintiff's request to alter the zoning,
rendering administrative relief futile. Thus, the issue presented is whether the
zoning board had jurisdiction to grant the relief plaintiff requested.
The resolution of this jurisdictional issue lies in the distinction between
zoning and a variance. Zoning involves the adoption of ordinances and
amendments to establish "the essential land use character of the municipality"
by the "geographical delineation of its districts," and the delineation of the uses
permitted such as lot size, height restrictions, and the like. Twp. of Dover v.
Bd. of Adjustment, 158 N.J. Super. 401, 411-12 (App. Div. 1978) (citing
Likewise, a variance accommodates individual situations requiring relief
from the restrictions and regulations that otherwise uniformly apply. Id. at 412.
The limitation on the variance power to a "specific piece of property" prevents
the board's action from "substantially affecting the essential land use scheme of
the entire district itself and perhaps of the entire municipality as well." Ibid.
A primary factor in determining whether a zoning board has jurisdiction
over a request for zoning relief is the size of the parcel sought to be rezoned.
Ibid. When the subject property involves a large tract of land, "the situation is
beyond the intended scope of the variance procedure . . . ." AMG Assocs., 65 N.J. at 110, n.3. The court should also consider:
[T]he size of the tract in relationship to the size and
character both of the district in which it is located and
the municipality as a whole; the number of parcels into
which it is anticipated that the tract will be subdivided
if subdivision is part of the plan, and the nature, degree
and extent of the variation from district regulations
which is sought.
[Dover, 158 N.J. Super. at 413].
Whether a large parcel or small parcel of land is at issue, a variance may usurp
the zoning power if the grant of the variance "substantially alters the
municipality's zone plan . . . ." Twp. of N. Brunswick v. Zoning Bd. of
Adjustment, 378 N.J. Super. 485, 493 (App. Div. 2005). Here, the Merck
property includes roughly 206 acres; however, it comprises less than five percent
of the RRC District.
Courts must also evaluate the relation of the parcel at issue to the character
of the district to determine whether granting variance relief would usurp the
zoning power. Dover, 158 N.J. Super. at 413. The RRC District includes
undeveloped areas, floodplain areas, open lands, and lands with fertile farmland,
with the aim to "conserve large contiguous masses of farmland and other
undeveloped lands," as noted in the 2006 Report. The Merck property
constitutes one of the largest, last remaining undeveloped parcels of land in
Branchburg, consists almost entirely of fertile farmland, and most of it is
currently farmed, which are features consistent with the other lands in the RRC
district. The northwest and southwest borders of the property contain
environmentally sensitive features such as steep slopes, a stream, and
floodplains. The parcel therefore contains many features similar to the
undeveloped rural farmland in the RRC district. This factor thus disfavors the
zoning board's jurisdiction to rezone the Merck property.
The last Dover factor concerns the number of parcels into which it is
anticipated that the tract will be subdivided, and the nature, degree and extent
of the variation. 158 N.J. Super. at 413. Plaintiff's request to rezone its property
would reduce the permitted density on the parcel to one residence per acre, a
six-fold increase in density. The fact that Merck would have to obtain bulk
variances for so many lots across 206 acres of land would result in "de facto
rezoning." Victor Recchia Residential Constr., Inc. v. Zoning Bd. of Adjustment
of Twp. of Cedar Grove, 338 N.J. Super. 242, 254 (App. Div. 2001).
Finally, the ordinance's amendment history weighs heavily against finding
the zoning board had jurisdiction to grant relief. Branchburg enacted the
amendment in June 2008, and plaintiff filed suit less than two months later.
Since the amendment created the RRC District, and expressly rezoned the Merck
property to include it within that district, any zoning board action granting relief
to plaintiff would run directly counter to the ordinance.
We affirm the trial court's ruling that the zoning board lacked jurisdiction
to grant plaintiff the relief it sought. Plaintiff therefore did not wrongly fail to
exhaust administrative remedies.
Branchburg next argues the trial court erred by presuming the ordinance
invalid and reversing the usual burden of proof. We agree.
Zoning ordinances are presumed valid. Griepenburg, 220 N.J. at 253
(citing Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338,
350-51 (2003)). The challenging party "bears the burden of overcoming that
presumption" and courts should uphold ordinances that are "debatable." Ibid.
"A mere difference of opinion as to how an ordinance will work will not lead to
a conclusion of invalidity; 'no discernible reason' is the requisite standard."
Zilinsky v. Zoning Bd. of Adjustment, 105 N.J. 363, 369 (1987) (quoting
Roselle v. Wright, 21 N.J. 400, 409-10 (1956)). The State constitution requires
that the delegation of zoning authority to municipalities must be "liberally
construed" in a municipality's favor. Rumson Estates, 177 N.J. at 351; N.J.
Const. art. IV, § 7, ¶ 11.
A challenger may overcome the presumption of validity by demonstrating
the ordinance is "clearly arbitrary, capricious or unreasonable." Pheasant Bridge
Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001) (quoting Bow & Arrow
Manor, Inc. v. W. Orange, 63 N.J. 335, 343 (1973)). Additionally, a challenger
may overcome the presumption of validity by showing the ordinance is "plainly
contrary" to principles of zoning or the zoning statute. Ibid. An ordinance "must
not be inconsistent with state or federal constitutional requirements or other
preempting legal authority," and "must conform to MLUL requirements and
further MLUL goals." Griepenburg, 220 N.J. at 253 (citing Rumson Estates,
177 N.J. at 351).
Here, the trial court proclaimed a novel holding:
[W]here a significant down-zoning occurs in an area
marked for growth in regional plans, the burden should
shift to the municipality to justify that down-zoning as
fairly reconciling regional and local goals and as being
rationally related to permissible ends.
The trial court reasoned that the legislative and judicial branches give
"enhanced, even if not dispositive, weight to regional planning considerations .
. . ." Because, in its view, Branchburg's ordinance "flouts the thrust of each and
every regional plan applicable to this property," it presumed the ordinance
invalid and required Branchburg to demonstrate why rezoning was necessary to
further its goals.
Through the New Jersey State Planning Act, N.J.S.A. 52:18A-196 to -207,
the legislature intended to create a "cooperative planning process" involving
participation of all levels of government to "enhance prudent and rational
development, redevelopment and conservation policies and the formulation of
sound and consistent regional plans and planning criteria." N.J.S.A. 52:18A-
196(e). However, the Act does not bind municipalities to follow the State Plan,
which is "not intended either to validate or invalidate specific ordinances."
Bailes v. Twp. of E. Brunswick, 380 N.J. Super. 336, 359 (App. Div. 2005); see
also Mount Olive Complex v. Twp. of Mount Olive, 340 N.J. Super. 511, 543
(App. Div. 2001).
Additionally, the trial court relied upon S. Burlington County NAACP v.
Mount Laurel, 67 N.J. 151 (1975) ("Mount Laurel I"), where the Court addressed
the use of zoning to deny affordable housing opportunities. Mount Laurel I, 67 N.J. at 179. The Court recognized a "broader view of the general welfare" set
forth in the State constitution, to include a "presumptive obligation on the part
of developing municipalities at least to afford the opportunity by land use
regulations for appropriate housing for all." Id. at 180. The Court found that
"proper provision for adequate housing of all categories of people is certainly
an absolute essential in promotion of the general welfare required in all local
land use regulation." Id. at 179. The Court therefore shifted the burden to the
municipality due to constitutional concerns regarding the opportunity for low
and moderate income housing. Id. at 180-81.
We do not view the present case as presenting a constitutional interest
comparable to Mount Laurel I. In the absence of a comparable constitutional
consideration, we see no reason to deviate from the well-settled rule that
ordinances are presumed valid, and find no basis to shift the burden from the
party challenging the validity of the ordinance. Cf. Zilinsky, 105 N.J. at 371.
Insofar as the trial court announced and applied a new, incorrect legal standard,
At the conclusion of the trial, the court made few factual findings or
credibility determinations. Rather, it applied an incorrect legal standard and
placed an impermissible burden on Branchburg to justify the ordinance.
Because the court's fact-finding was inextricably intertwined with the erroneous
legal standard it applied, we cannot sustain its conclusions.
As a result, we have no alternative but to vacate the order under review
and remand for reconsideration under the correct legal standard. On remand,
plaintiff shall bear the burden of overcoming the applicable presumption of
validity by demonstrating the amended ordinance is clearly arbitrary, capricious
or unreasonable, or by showing the ordinance is plainly contrary to principles of
zoning or the zoning statute.
Affirmed in part, and vacated and remanded, in part. We do not retain