*1 case, can await respect thereof any issue Resolution us, squarely presented. it is one before unlike the
VII handicap within summarize, is a we hold that alcoholism To complainant has find that Against Discrimination. We the Law case of proving prima his burden of failed to sustain facie discrimination, of his failure to establish because unlawful Ac- acceptable job performance. or his either his alcoholism Appellate Division cordingly, judgment affirm the we complaint. dismissing the reversing Director’s decision and No costs. WILENTZ and Justices Justice
For affirmance —Chief O’HERN, HANDLER, POLLOCK, CLIFFORD, GARIBALDI and STEIN—7.
Opposed—None. WIFE; RIGGS, RIGGS, AND ISLAND VIRGINIA HIS CHARLES J. HOMES, INC., THE OF NEW A OF STATE CORPORATION PLAINTIFFS-APPELLANTS, JERSEY, OF LONG v. TOWNSHIP BEACH, DEFENDANT-RESPONDENT. September 1988. Argued 1987 Decided March *3 Richard argued A. Grossman appellants cause for Kruttschnitt, & attorneys; Nemeth, Steven F. 0Grossman brief). argued Granville D. Magee respondent cause for (Magee Graham, and attorneys; Philip Pagano, brief). G. on the opinion The of the Court was delivеred POLLOCK, J. dispositive case,
The
issue in this
which is before us for the
time,
second
is whether the Township
Long
Beach enacted
challenged
zoning ordinance for a
purpose. Original
valid
ly, the Law
(81-1C)
Division held in 1983 that the ordinance
was
“undeniably unreasonable and arbitrary and hence void as
unconstitutional.” In
unreported opinion
an
Appel
late Division reversed and remanded because the enactment of
(83-9C),
a later ordinance
passed
procedur
which was
to correct
pertaining
81-1C,
al defects
to the enactment of ordinance
challenge
rendered moot the
to that ordinance. Because the
ordinance,
later ordinance was identical
original
to the
we
Appellate
reversed
remanded the matter to the
Division for
(1986).
remand,
reconsideration. 101
Appel
N.J.
On
found, among
late Division
things,
other
that ordinance 83-9C
zoning purpose
again
had a valid
judgment
reversed the
N.J.Super.
(1986).
the Law Division. 212
granted
We
certification,
(1987),
I The relevant facts are 1976 the Long voters of Beach Township approved a referendum acquisition for the “public open-space” property. time, appellants, At that Charles J. Riggs; Virginia wife; Riggs, his corporation, and their Island Homes, Inc. (collectively Riggs), property owned the in ques- tion, which is located Long between Beach Boulevard and Little Egg Then, now, Harbor. the property, known generally as 0-19, Block Lot 1 on township map, tax unimproved. R-50, was zoned which allowed residential lots of *4 feet, square five thousand with a minimum width fifty feet. Riggs appli- requirements, prepared an with these Consistent cation in 1977 to subdivide the property into four lots. 14,
In a 1977, letter dated December the township attorney Riggs advised proposed the subdivision would not be approved Township, light because the in of the 1976 refer- endum, acquire intended to property. the The letter informed Riggs property that the appraised would thirty within days, Township acquire if could not property through and the the contract, property through it would take the the exercise of domain. eminent letter,
Contrary Township to the the ap- did not obtain an praisal September until when the property appraised $234,500. however, Township, pur- for neither offered to property chase the nor commenced proceedings. condemnation Instead, year, Planning that same the adopted Board a master plan, designated public open space a five-block area lots, consisting including plaintiffs’ property. eleven Not- withstanding adoption plan, of the master Township zoning amended the ordinance in 1979 and retained R-50 Thus, for the eleven-lot tract and surrounding area. two years Township after the process plaintiffs’ refused to subdivi- application, sion confirmed its commitment to zoning, Riggs R-50 under which property could divide the into Furthermore, properties four lots. Long west of 80% 5,000 Beach developed square Boulevard were on lots of feet or area, i.e., less, thirty-two ninety other lots in the 36% lots, 5,000 short, of those had square areas less than feet. Riggs the R-50 for the property was consistent with the neighborhood. character of the
In 1979 and partiеs engaged negotiations in in Township, which the consistent appraisal, with its 1978 offered $234,500. purchase the property Riggs’ request, At appraiser $400,000. same valued the 1980 at Both appraisals highest reflected property, and best use of the which would be approximately subdivision into four lots of 9,200 square feet each.
Mayor Mancini Riggs property, was anxious to parties $400,000, and the subject considered a sale for to an $160,000 by Riggs Township. immediate donation of to the end, Mayor Riggs Toward that wrote to on November 1980, “[bjecause of the dramatic rise of the of land on value Island, Long delay obtaining Beach and the substantial *5 impossible funding, Township] it would be to obtain the [the present $400,000 property at its fair market value of without you giving present us the difference between the value and the purchase price.” The letter corroborates the desire of the property, through another, Mayor to one means or possible price. at the lowest parties agree, negotiations ended, could not
Because Township in December instituted an unsuccessful seeking specific performance alleged agreement action of an Riggs. Chancery sale with Division dismissed the action 2, 1985, Appellate Division affirmed that April on dismissal.
Shortly parties negotiations, after the ceased in December Township approved Committee on reading first an R-10, amendment to rezone the eleven-lot tract to which would permit 10,000 lots square with a minimum lot size of feet and a depth minimum width and of 75 feet. The effect would tobe building Riggs reduce the number of lots on the from 40:55D-63, compliance four to two. with N.J.S.A. the com- Planning missioners referred the ordinance to the Board for regular review. Because the already Board had held its meet- ing during December, Mayоr the first week of Mancini called a special meeting, was held his office on December Board, meeting, 1980. At that Mayor which included Man- member, cini as an ex approved officio ordinance 81-1C. Ten later, 2, 1981, days January 2-to-0, on by a vote of adopted Committee ordinance With 81-1C. one com- absent, missioner Mayor Mancini and another commissioner approve voted to the ordinance. Planning
The minutes of the “[p]urpose Board recite that the of ordinance was to remaining open retain one of the last spaces Long Beach Boulevard. Commissioners were re- questing approval planning and recommendations of board to prior purchase rezone the area to the with Green Acre funds.” *6 Thus, support those minutes the that rezoning inference the acquisition was related to the of the Riggs property. Mancini, According Mayor to who for the Township testified trial, at proposed, when the R-10 amendment first the Riggs only lot property was the affected that yet was not owned or Township. under contract sale to the Before the Division, Appellate Township the that contended it had not lots, acquired apparently title to all other but did challenge not the fact that it had executed contracts for the lots it had not acquired. N.J.Super. 212 at 72 n. 1. adoption ordinance,
One month after the of the on February 5, 1981, Riggs action, claiming, instituted this among other things, purpose that the sole of the amendment was to drive down the fair market value property of his so that the Township trial, acquire cheaply. could it more Mayor At Manci- ni adoption testified about the of the 1981 amendment. He explained Township sought that the to the eleven-lot public area for pursuant use to the 1976 referendum and the plan. 1978 master other property The ten owners had sold or agreed Township. properties negotia- to sell their to When the down, plaintiffs tions with Mayor broke the realized that the retaining 1979 ordinance R-50 awas mistake. In re- sponse question to change from the trial court whether the in precipitated by had in problem acquiring been the Riggs property, Mayor that candidly admitted is no “[t]here discussion, question thought, provoked that it and etc.” and helped that “there’s situation question Riggs no that the to * * * bring thought neglected out that to zone we had this properly in He further acknowledged 1979.” that nei- [area] ther the physical general lots nor the conditions eleven Township adoption conditions changed had since amendment, the 1979 and the simply ordinance but claimed been that the area should have zoned low eleven-lot density explained Township generally 1979. that He designated public open space zoned areas at the lowest density space” open because “closest and “if the that is to that * * *
people keep open space, voted to my this then it’s responsibility keep open space.” asking it Mayor When why Riggs needed property to rezone since it it, planned condemning the trial court “If you commented: it, going are to condemn then condemn it. What’s the differ- R-10, get ence whether it’s the R-50 or unless it is to it at a cheaper price?” Mayor responded the 1979 amend- mistake, ment was a passed the 1981 amendment was correct.1
1Mayor Mancini testified as follows: that, right. doing Q. township "All And all of zoned this *7 R-50 in did it not?" “Correct, yes." A. "Now, Q. any physical change adoption did conditions between the of here, question that ordinance in 1979 the ordinance that is in adopted January lots, property, physical- was 1981? Did the the eleven ly change any way?" in A. "No." general Q. change “Did materially conditions on the island in that area January from 1979 1981?” A. "No." changed Q. adoption “What between the of this ordinance adoption which caused the of this ordinance?" process acquisition A. "The program." under the Green Acres it, "Meaning, Q. properties I public as take that the town wanted these for areas. Correct?” A. "Yes.” gone Q. acquiring "And had about the ten lots which the town did not own itself. Correct?" A. “Correct.” Q. property “And all the owners with those —in connection with those lots, exception Riggs, by January agreed with the of Mr. of 1981had to sell township. to the Correct?" A. “Yes.” Q. Riggs only agreed. "And Mr. was the one who had not Am I correct? Yes, sir?" MR. you MAGEE: "You can tell him. You can answer whatever want to. you Don’t look at me. Tell him what want." "Well, course, point Riggs A. agreed that's a of contest. Mr. had verbally, signed but we nevеr contracts. That’s the answer.” Q. only conveyed. right?" “He is the who had not [one] All "Okay, yeah.” A. amendment, township planner, further defense of the the Birdsall, Thomas if Township W. asserted that the intended to acquire property, restricting the it had an interest in develop- possible density ment to the theory lowest on the that the rezoning acquisition would reduce costs. He further defended saying by the ordinance lower density zoning that would result acquisition the removal of fewer by structures after the municipality. testimony His was contradicted John Maczuga, planner Riggs, retained by who asserted that possible use of property public space future open irrelevant property because would property have to before it could create the public use.
The trial court concluded: plaintiffs parcel building I find that the was subdividable into four 50 foot lots question only before the оrdinance and would into subdividable two 100 building question. adversely foot lots under the terms of ordinance in This property. plaintiffs parcel effected the value is located in a [sic] entirely residential area known as Brant Beach which is zoned almost for 50 building plaintiffs foot Under lots. the new ordinance the 200 foot lot would only property requiring be the in Brant Beach foot lots. upon It has been held use real must find restrictions their justification aspect police power, reasonably public in some of a exerted relationship public changing welfare. I no can find to the welfare in the use of by negotiations going property THE COURT: Riggs acquisition precipitated THE WITNESS: “There is no price?” THE COURT: "That is Mr. A. the difference whether it’s in sion, and etc.” know what in the world did "Okay. Riggs to acquire owners was All this “Well, and the a accepted piece entire last one you I think what [********] why say why are of strip thе property going I * * R-50 or because appraised this was question *.’’ you to condemn appraised1by change and if R-10, did is *8 nothing in the that it price you unless you world, it, zoning.” else and entered into contracts. want to —if provoked thoixght, said this two then condemn it. What’s it’s to changed, if it appraisers. get problem didn't, you it at a and if can’t do it I'd All with the cheaper discus- like to you’re other single permitting to a of from one a four lot one development parcel property permitting two lots. only I am aware that the ordinance in is entitled to a of While question presumption legislative judgment and that if the local is at least debatable it is to be validity I find that this ordinance is unreasonable and undebatably arbitrary sustained[,] and hence void as unconstitutional. at
[ 75.] 212 N.J.Super. reversing, Appellate the Division found that the 1981 purposes amendment was consistent with the stated the “protecting the natural resources and amenities master oceanfront,” Township [along] bayshore the and and of the “single family-oriented maintaining density the low character of community by upgrading possible the minimum lot sizes where limiting multi-family housing development.” 212 N.J.Su- per. (quoting plan). accepted at 78 the master The court hypothesis Township’s expert property if that intended to acquired public open space developed will be before acquisition, restricting development ordinance to possible density purpose has a restric- lowest valid because the low-density development acquisition tion to facilitates public and establishment use. Id. at 79-81. Division, pending Appellate the matter in the While Township proceedings acquire initiated condemnation Riggs property. proceedings, pending, Those which are still began Township’s close the circle thаt letter in 1977 advising deny application Riggs that it would subdivision property through intended to because condemnation.
II begin We with an overview of some fundamental Municipalities principles pertaining power to the to zone. do zone, possess power they possess not the inherent power, police power, only which is an exercise of the insofar as delegated by Legislature. Taxpayer it is to them the Ass’n of Township, Weymouth Township Weymouth v. 80 N.J. (1976). A ordinance is insulated from attack
611 presumption validity, may of be overcome a showing “clearly arbitrary, capricious that the ordinance or unreason able, plainly to contrary principles or fundamental of or statute.” Bow & Arrow v. [zoning] Manor Town West of 335, (1973); Orange, Zilinsky N.J. accord 63 Zoning v. 343 Bd. Verona, Adjustment 363, (1987); Weymouth N.J. 105 368 of of Township, supra, 80 N.J. at 20. The party attacking the ordinance bears the overcoming burden of thе presumption, Montgomery v. 529, Township, Ward 28 N.J. (1959); La 539 Brunswick, N.J.Super. 435, Rue v. East 68 454 (App.Div.1961); and, burden, meeting may party rely on extrinsic evidence, Bellington Township Windsor, v. East 32 N.J.Su of per. (App.Div.1954). 248 question Courts should not ordinance, of debatable, wisdom an and if the ordinance is it Manor, upheld. supra, Bow &Arrow should 63 N.J. at 343; Zilinsky, supra, see 105 also N.J. (“[a] at 368-69 mere differ opinion ence of to an as how ordinance will work will not lead to
a conclusion invalidity; ‘no requi discernible reason’ is the standard”). site
Although judicial circumscribed, role is may a court an declare ordinance if enacting invalid the ordinance the municipality complied has not requirements with the Weymouth Township, statute. supra, N.J. at 21. General- ly, satisfy ordinance must objective certain criteria. First, the ordinance purposes must advance one of the Municipal Land Use Law set forth in N.J.S.A. Id. 40:55D-2. Second, the “substantially ordinance must be consistent with рlan land use housing plan element and the element of the designed master plan elements,” effectuate such 40:55D-62, N.J.S.A. requirements unless the of that statute are Third, otherwise satisfied. comport ordinance must constitutional zoning power, including constraints those pertaining League Home process, Jersey, Builders due S. Township Berlin, Inc. v. 81 N.J. (1979); equal Burlington County protection, Southern v. N.A.A.C.P. Mount Township, Laurel (1983); 92 N.J. prohibí- 208-09 and the *10 confiscation, Spring Assocs. v. AMG against tion of (1974). Fourth, 101, 111-12 must be the ordinance field, 65 N.J. municipal procedural statutory and adopted accordance Rohan, Zoning P. & Land Use Controls requirements. (1986). at 36-15 § 36.02[1] criterion, focuses on the first present case purpose. One of ordinance must have valid
requires that the encourage Municipal Land Use Law is of the purposes “[t]o development of guide appropriate use or municipal action State, promote the in a manner which will lands in this all morals, health, general and welfare.” N.J.S.A. safety, public addition, specifically states that one of In the Act 40:55D-2a. open space. 40:55D-2.2 provide for N.J.S.A. purposes its is to municipality’s cost of solely to reduce the An ordinance enacted however, ordinance, does land affected acquisition of the Denville, 93 zoning purpose. Corp. v. fulfill a valid Wital not recognize also (App.Div.1966). Other states N.J.Super. 107 zoning power to enact an ordinance is an that it abuse of depressing of the value purpose for the sole acquire through City condemnation. municipality seeks to 563, (Fla.Dist.Ct.App.1972); Silver, 569 257 So.2d Miami v. of 146, 10, Park, 329 Mich. 45 N. W.2d Highland Long City v. of Detroit, 326 Mich. (1950); City v. 13 Trunk R.R. Co. Grand of Willmar, (1949); 282 Minn. 387, v. 40 N. 195 Sanderson W.2d 2The statute provides g. open space, mental requirements agricultural, c. To To provide adequate provide both residential, sufficient space рublic in relevant in order to meet [********] ******** recreational, commercial and light, air and private, part: appropriate according Jersey the needs of all New open space; to their respective locations for a industrial uses and variety citizens; environ- of j. districts, sites and space, the conservation of historic open To promote energy in the State and valuable natural resources resources and through degradation im- of the environment urban prevent sprawl * * *. use of land proper
613 494, (1968); Gurda, 162 497 v. N.W.2d State 209 Wis. 243 (1932). N.W. determining whether the ordinance adopted for an purpose, distinguish
unlawful we purpose between the ordinance and the motives those who enacted it. Courts generally inquire will not legislative impugn into motive to ordinance, facially valid but will consider evidence about the legislative purpose “when the reasonableness the enactment apparent Clary Borough Eatontown, not its face.” v. N.J.Super. (App.Div.1956). Although the distinction *11 purpose fuzzy, between motive and can ordinarily “motive” subjective legislator, addresses the considerations that move a “purpose” speaks goals and to the to be achieved. See also (defining 914 Dictionary “[cjause Black’s Law “motive” as action”) reason that moves will the and induces 1112 and (defining “purpose” as which one sets before him to “[t]hat accomplish; end”) (5th 1979). an ed. The determination of “purpose” depends objective factors, as terms such the of effect, operation the ordinance and its as well as the in the adopted. Developments context which ordinance was in Law, 1065, (1969). the 82 1091 Harv.LRev.
If pur an ordinance has both a valid an invalid pose, guess purpose governing courts should not the O’Brien, had in body mind. See v. United States U.S. 383-84, 1673, 1682-83, (1968). If, 88 S.Ct. 20 L.Ed.2d however, purpose purpose the ordinance has but one and that unlawful, may Hence, courts declare the ordinance invalid. party challenging when a an it ordinance asserts that was adopted improper purpose depressing for the the of value the proceeding, in seek may a condemnation the court municipality’s purpose enacting ascertain the the ordi true inquiry nance. This limited to of the should be an evaluation surrounding objective adoption facts the ordinance.
III amending Township defends the ordinance The asserting that the R-10 tract from R-50 to the eleven-lot density, and space, population promotes open controls ordinance environment. degradation sprawl and prevents urban that it is Township’s expert land use testified Additionally, the effectuate the the ordinance serves to debatable” that “at least plan. intent of the master ordinance, Riggs points objective to various attacking the
factors, practical effect of the terms of the ordi- as the such Township’s adopted. in which it was and the context nance public open space for acquiring Riggs property interest in early itself as condemnation manifested by purchase or Township application. The Riggs prepared a subdivision when approved be- application would not be Riggs that the advised acquire property, which was Township’s plan to cause public open space in the 1978 mas- for subsequently earmarked plan. ter Township negotiate
When unable a contract to Riggs property, it specif- instituted an unsuccessful performance against Mayor ic action them. Mancini's Novem- 5, 1980, Riggs Township’s ber letter to iterated the interest in purchasing propеrty, Township but claimed that the did not purchase. have funds to consummate the While all this was going confirmed 1979 the R-50 *12 ^>n, property. the
In adoption the interim before the of the ordinance downgrading R-10, property physical the to neither the condi general tions of Brant Beach nor the conditions of the Town ship changed. changed All Township had that had was that the acquired had acquire or contracted to the other lots earmarked public open space. 23, 1980, for The minutes of the December Planning meeting Township adopted Board confirm that the eye 1981 ordinance with an condemning Riggs toward sum, property. objective pur facts establish that the sole pose permit Township purchase ordinance was to to property cheaply. more Although the record in this case correspondence includes testimony Mancini, Mayor we rely need not on that evidеnce to conclude that the ordinance did any not serve valid zoning purpose. anticipate We that testimony about pro- the mental municipal cesses of officials ordinarily will be immaterial to establishing the validity zoning Here, of a purpose. the objec- facts, public tive from the referendum in 1976 to the condemna- tion proceedings constitute a continuous at- initiated tempt by the Township acquire property at the lowest possible price. When it could not the property through negotiations, Township unsuccessfully Riggs sued spe- for performance cific and rezoned the property from four lots to Having two. reduced the value of the property through the zoning amendment, then initiated condemnation proceedings in 1986. holding
Our that challenged ordinance is invalid need not preclude other municipalities from other more restrictively Here, on a however, different set of facts. municipality simultaneously planned open space for and zoned for residential use. purpose amendment was not to fulfill plan, the master but to municipality enable the pay the property owner less than fair market value under the preexisting zoning ordinance. Municipal Law,
Under the Land “open space” Use is a defined term contemplates that that the land will be “essential- ly unimproved” except buildings designed “that are to be incidental to openness the natural of the land.”3 N.J.S.A. designation 40:55D-5. The “open space” contemplates the provides part: 3N.J.S.A.40:55D-5 in relevant “Open space" any parcel essentially means or area of land or water aside, dedicated, unimproved designated public and set or reserved for or private enjoyment enjoyment use or or for the use and оf owners and occupants adjoining neighboring open space; provided land such may structures, improved such only buildings, areas those streets *13 contrast, property unimproved. purpose will remain In zoning property for residential use is not to leave the unim- proved, permit developed purpose. it to but be for that zoning Amending developed ordinance so that can be change lots instead of four does not two fact that it will developed inconsistently plan. with the master To some extent, therefore, provision in the ordinance for residential open-space designation use is inconsistent with the in the mas- however, plan. Riggs, challenged ter has not the ordinance inconsistency. recognize any because of that We develop- that ment, use, including that for residential is somewhat inconsist- open space. ent inconsistency It suffices to note that the open space between residential use and corroborates the conclu- amendment, sion that the permit develop- which continued to purposes, adopted ment for residential pur- for an invalid pose. recognition
In municipality might that a want to zone incon- sistently plan, Municipal with the master Land Use Law provided majority that a membership govern- the full ing body might adopt zoning such a ordinance if the reason for acting so was “recorded in the adopting minutes when such case, ordinance.”4 In present governing body never attempted comply requirement. with that Even if it had adopted requirements been in accordance with the of N.J.S.A. parking improvements designed and offstreet and other that are to be openness incidental to the natural of the land. challenged adopted, 4in when the ordinance was NJ.S.A. 40:55D-62 adoption plan by allowed of a ordinance inconsistent with the master stating municipality: that a may adopt ordinance or amendment revision thereto which in part designed whole or is inconsistent with or not to effectuate the land element, plan housing only by use element and the but an affirmative vote majority membership governing body, of a of the full authorized governing body acting with the reason of the for so recorded in its minutes * * adopting when such ordinance *. require explanation this section was amended to for the deviation from the master be "set forth in a resolution." L. c. 516. *14 40:55D-62, the ordinance would fail. As objective facts clear, unswerving make purpose municipality of the from beginning to end has been acquire to the property open space paying price. without a fair Township’s attempt
The to link the reduction of lots to the designation open of spaсe in nothing the master more herring than a red to divert attention from purpose the true the ordinance. Contrary to the testimony of the Township’s expert, land use preserve ordinance did not create or open space; merely it reduced the number of buildable lots from four to two as a reducing means of the fair market value of the Riggs property. empty The zoning recitation of cant a land expert use is insufficient to sustain an ordinance that is unsup- ported by objective facts.
Ordinarily, we would remand this matter to the trial court for light reconsideration in opinion. years After seven litigation and appeals Court, however, two in this we are sufficiently familiar with the matter to conclude that the ordi- nance cannot stand. The amply supports record the conclusion that the ordinance is not rationally related to a valid and, purpose found, as the trial court that the ordinance is * * “undeniably arbitrary unreasonable and The time has bring come to this matter to a A close. remand to the Law necessary, however, Division is pendency because of the proceedings. condemnation In proceedings, those ordinances 81-1C and invalid, 83-9C shall be Riggs treated as and the property shall be evaluated as it permit was zoned in subdivision into four lots in requirements accordance with the zoning. of R-50 judgment Appellate reversed, Division is and the
matter is remanded to the Law Division.
For reversal and remandment —Chief Justice WILENTZ CLIFFORD, HANDLER, POLLOCK, O’HERN, Justices GARIBALDI and STEIN—6.
Concurring HANDLER—1. —Justice
HANDLER, J., concurring. Long The Court invalidates Beach ordinances 81-1C and (the issue) 83-9C two identical amendments at on the grounds they that do purpose not have a valid and in fact were enacted to enable the property at less than its fair market value. While I concur with its conclusion the ordinances should be invalidated Riggs’ and that the рroperty should be valued proceedings condemnation R-50,1 if it were zoned necessary do not think it is to walk the fuzzy purpose line between motive and to reach this result. *15 my opinion the is ordinance invalid because comply it fails to with requiring the standards conformity comprehensive planning required by Municipal Land Use Law. N.J.S.A. 40:55D-1 to -112. planning prominent
Land-use is a zoning element of under current law. The planning role of under the zoning current statute in sharp practice contrast to the previous under the . zoning act. Prior to the Municipal enactment of the Land Use (L. 291), Law loose, 1975 c. there only was a almost precatory requirement zoning that a ordinance reflect planning. sound All the act zoning demanded was that a ordinance be designed to further at least one of a number of enumerated purposes, and be in “comprehensive accordance with plan.” a However, N.J.S.A. 40:55-32. “comprehensive the term plan” something was of a misnomer. It specifically was not defined by statute and it rigorous did not systematic denote or planning as an actual concomitant zoning condition of a ordinance. The “comprehensive plan” under the old act was not an actual blueprint development and approximate did not a “master plan.” Cunningham, See: “Control of Land Use in Jersey New by Means Zoning,” 37, 14 (1959). Rut.L.Rev. 54 To deter- particular mine whether zoning a ordinance was “in accordance comprehensive with a plan,” inquire courts would as to whether municipality’s zoning scheme, entire including the chal- lenged ordinance, could integrated be considered “an product of process.” a rational See Kozesnik Montgomery Tp., v. 24 N.J.
619 (1957). process” 166 Such a “rational could inferred sources, maps, from elements or such as diverse filed other use, relating regulatory ordinances to land and elements touch- ing public safety transportation. on diverse matters such as and Thus, “comprehensive plan” served to describe a result rather process. than a legislative
This scheme often led to enactments that Pop Realty Corp. See v. planning. reflected little or no actual Tp. (Law Springfield Adj., N.J.Super. Bd. 176 448 Div. 1980)(discussing planning prior Municipal to the enaction of the Law). Further, municipalities required Law Use were not even prepare adopt plan, a master and even if a plan master adopted place any municipal it did not restrictions on the governing body, disregard which was free to short, adoption adoption ordinances. In of a plan by municipality legal consequences. master had no Bd., v. Planning N.J.Super. Cochran Summit Div.1965). (Law contrast, Municipal Land Law enhances rоle Use
planning regulation zoning. land use and This reflects one purposes primary legislation, “to achieve a better planning regulation,” Report coordination of land use Committee, County Municipal S.3054 Government *16 (1975), by establishing for clearer standards the evaluation of municipal regulation. Municipal land use Under the Land Use particular importance requirement Law “of for a strict- [is] conformity plan, map, er between master official and ordinances.” Id. at 2. heightened planning ways. in
This role of is reflected several Law, Municipal Under the Land Use a prerequisite zoning power by municipality prepara- exercise of the a is the See N.J.S.A. 40:55D-62. adoption plan. tion and of a master addition, detailed, plan the envisioned master is a much more rigorous systematic planning in and exercise than that which Act, Planning merely sufficed under the old stated that a оptional plan “generally municipality's comprise master shall circulation, use, report presenting land and objectives, assumptions, principles standards and which are in embodied interlocking portions plan.” the various of the master N.J.S.A. plan A master 40:55-1.10. under current must law include objectives assumptions statement of and as well as a land use plan housing and element element. N.J.S.A. 40:55D-28b. The plan relationship potential state its plan must also to other elements, transportation, utilities, facilities, community such recreation, conservation, energy environmental and and historic preservation. 40:55D-28b(l)-(10). See It N.J.S.A. also must disclose the technical plan foundation for the master and its 40:55D-28b(ll). constituent elements. N.J.S.A. emphasis upon planning
The prerequisite as a of zoning is statutory also reflected responsibility part municipalities engage continuing planning. to Municipal The periodic Land calls plans. Use Law review of master governing body must reexamine the plan adopt by master report containing findings resolution a its at least once every years, stating problems six objectives relating to land development, the extent to which these concerns had been assumptions policies addressed and extent which the or provided existing plan that the basis master had changed. N.J.S.A. 40:55D-89. See Levin v. . Hills, 174, 181 (1980)(“the ParsippanyTroy legislative n. N.J. intent a municipality should reexamine its land use regulations periodically.”)
The reason for this statutory elaborate framework is that practice unlike the respect the-optional plans master under Planning Act, the old Municipal Land Use Law demands conformity plan stricter between the master and land regulation. use requires N.J.S.A. 40:55D-62 that “all of the provisions of such any ordinance or amendment or revision thеreto shall either substantially consistent with the plan land use housing plan element and the element of the plan designed master to effectuate such elementsf.]” *17 Cochran, supra, Unlike the situation discussed in cases like N.J.Super. plan at under current law the master cannot be Indeed, ignored. compliance planning with the standard must demonstrated. is Municipal It thus clear that the focus of the Land Use Law planning is on the enhanced role of strengthens and that it planning process statutory itself. The enumeration of the formulating factors to be considered in plan, a master and the statutory plan directive that the master itself include an evalua- proposed light factors, tion of ordinances of these N.J.S.A. 40:55D-28b(2), heightening serve the end of planning role of proper zoning. as a condition of It follows require- that the ment that substantially a ordinance be consistent with plan strictly the master should be enforced. It is not amiss to note, further, requirement to conform to a plan tempered Thus, master by flexibility. some if a munici- pality adopts an ordinance that is not consistent with its current plan master it must any depar- demonstrate a basis for such 40:55D-62, N.J.S.A. ture. Under municipality: a may adopt zoning ordinance or amendment or revision thereto which in whole part designed plan is inconsistent with or not to effectuate the land use housing plan element, only by element and the but an affirmative vote of a majority membership governing body, of the full with the authorized governing body acting reason of the for so recorded in its minutes when adopting such a ordinance[.] As the Court in Levin observed: “under power the new law the intact, municipality of a to zone by remains only restricted safeguards.” Levin, specified procedural requirements supra, 82 N.J. at 179. Therefore, municipality mаy disregard plan provided proper procedural its master requirements are met. See Sponsor’s (1975) Statement to S.3054 (Municipal Land present powers Use Law retains all the municipalities). light procedures provided Legislature to allow municipalities ordinances, to validate inconsistent when read in require explanation 1ln this section was amended to that the ¿.1985 deviating from the master be "set forth in a resolution[.]” c. 516.
622 overarching conjunction with the Law’s encourag- concern with Legislature ing planning, that it is clear intended that the requirement substantially that ordinances be consistent with plan rigidly the master be enforced. substantially
The ordinance at issue here not is consistent meaning within plan with the master of N.J.S.A. 40.-55D-62. plan municipal adopted The provides master 1978. It encompassing Riggs’ area that the be devoted to However, “open-space.” both ordinance 81-1C and 83-9C call open space residential use in area to by devoted use plan. “Open-space” master is a defined term under the Munici- pal 40:55D-5, open-space Land Use Law. Under N.J.S.A. is essentially unimproved land or water and reserved for the of enjoyment open-space. provides such The Law that “such may improved areas be only buildings, structures, those parking improvements streets and offstreet and other that are designed to openness be incidental to the of natural the land.” Thus, Id. itself in statute this case furnishes a standard for determining whether a “substantially ordinance is con- plan. question sistent with” the master is thus whether permitted question the residential use the ordinances in “designed openness be incidental to the of natural the land.” clearly
It is not. Residential use is not consistent with open-space. dwellings Residential that could be constructed as right under the ordinance in area designated by an plan master to be open-space anything devoted to would be not improvement, station, like an perhaps such as might rest that truly openness be “incidental to natural land.” In Tp., (Law v. N.J.Super. Sheerr 184 Evesham 59-60 Div. 1982), allowing an ordinance residential as a structures condi designated “park preservation tional use an area area” was found to be plan neither consistent with the master nor designed act, it. effectuate Even under the old provisions open-space provided that guarantees insufficient the land would in to open-space fact dedicated were invalid. Estates, See Mayor Mountcrest Rockaway Tp., Inc. v. 96
623
(1967)
den.
Under this
question
ordinance in
must fall.
development
effect of
ordinance is to allow residential
in an
open-space
area intended to be
dedicated
use. More
it
accurately,
placed
allows two residential units to be
on the
Riggs’
however,
actuality,
Riggs’
land.
land is undevel
oped, as
all of
parcels
by
are
the other
of land affected
Furthermore,
ordinance.
municipality
since the
purchased
has
parcels
the other
intent
their undeveloped
maintain
status,
only property
possible development
which it is
place
Riggs’.
will take
permits
The ordinance thus
development in
residential
an
open-
area that is dedicated to
space
use both
master
actuality. The
proposed
arbitrary
capricious
*20
ordinance is thus an
exercise
zoning power.
e.g.
supra,
Speakman,
See
atN.J.
(ordinance allowing foundry in the midst of a residential devel
opment found not in
comprehensive plan).
accord with a
See
Estates,
also
supra,
(open-
Mountcrest
For these I believe the ordinance at issue here should invalidated and the pre-ex- valued under its zoning. isting R-50 I therefore opinion concur adjudging Court the ordinance invalid.