Route 15 Associates v. Jefferson Tp.

Decision Date15 December 1982
Citation187 N.J.Super. 481,455 A.2d 518
PartiesROUTE 15 ASSOCIATES, A Partnership maintaining offices at 17 Academy Street, Newark, New Jersey, Plaintiff-Appellant, v. TOWNSHIP OF JEFFERSON, A Municipal Corporation of the State of New Jersey, Defendant-Respondent.
CourtNew Jersey Superior Court — Appellate Division

Edwin H. Stier, Newark, argued the cause for plaintiff-appellant (Kirsten, Friedman & Cherin, Newark, attorneys; Phillip Lewis Paley, Newark, on the brief).

Eugene P. Dolan, Dover, argued the cause for defendant-respondent (Kenihan, Cohen & Kron, Succasunna, attorneys; James M. Kenihan, Succasunna, on the brief).

Before Judges FRITZ, JOELSON and PETRELLA.

The opinion of the court was delivered by

PETRELLA, J.A.D.

Plaintiff appeals from its unsuccessful challenge to the constitutionality of an amendment to a Jefferson Township (township) zoning ordinance in a suit in lieu of prerogative writs. Although plaintiff never presented any development plan before either the planning board or zoning board of the township, it contends that the rezoning of its property from commercial to residential use was arbitrary, unreasonable and capricious; that the rezoning constituted a taking without due process, and that it did not conform to State or municipal law. Plaintiff also contends that the trial judge improperly took into account his own personal knowledge of the area. We reverse and remand for failure of compliance with N.J.S.A. 40:55D-62(a), noting as well that plaintiff did not exhaust its administrative remedies.

I

The land involved consists of approximately three acres located in Jefferson Township on a median strip between the northbound and southbound lanes of State Highway 15 about two miles north of Interstate Route 80. In 1968 or 1969 the State converted what was a two-lane road into a dualized highway by constructing separate northbound lanes on the easterly portion of property now owned by plaintiff. Plaintiff's property is 134 feet wide at the northern boundary and 167 feet wide at the southern side. There is 854 feet of frontage on the southbound roadway and 860 feet of frontage on the northbound roadway. The record indicates that the property is at the base of a relatively steep hill and, moreover, that most of the property is below the highway grade on either side. Hence it is asserted that development would require a substantial amount of fill or complex drainage arrangements.

Plaintiff, a partnership whose principals are not disclosed, apparently purchased this particular property in September 1970, which is after the State's construction of the northbound lanes. The record does not disclose the purchase price of the property. Likewise, it does not reveal whether and to what extent the owner of the property at the time of any condemnation action by the State Transportation Department was paid compensation for damages to the remainder.

The property was zoned for commercial uses until 1979. The 1979 zoning ordinance amendments rezoned portions of the median strip, including plaintiff's property, for single-family residences. A thumbnail review of the area indicates that on the far side of the northbound lane near the property in question there is a partially wooded lot on which is located a heavy-equipment business. That side of Route 15 is now zoned for industrial use. On the far side of Route 15 on the southbound lane is a one-family dwelling in an area now zoned commercial. South of plaintiff's property there is vacant land, and at Route 15's intersection with a cross street there is a gas station. To the north of plaintiff's property on the median there is an old house and more vacant land. The vacant land is characterized by a steep upward grade and extreme narrowness of the median strip. At the top of the hill the median strip widens and becomes level. It contains some business establishments, including a shopping center, about a mile north of plaintiff's property. There are existing homes on the median strip which are 15 to 100 years old. No construction has taken place on the median strip in the past 10 to 15 years.

The parties apparently do not dispute that the best use of the property would be as a median strip and nothing more. Although at oral argument a question was raised as to whether any development of plaintiff's property would be economically feasible, plaintiff's experts at the trial were of the opinion that commercial use was feasible, assuming appropriate precautions were taken to mitigate the traffic hazard. It was recognized that commercial development would be costly because of the drainage problem and traffic considerations. Defendant's expert was of the opinion that commercial or office use at that location would not be safe. He testified that the property was zoned for residential use because no one could propose another use which would be safe. Essentially, plaintiff seeks inverse condemnation on the thesis that the property has been zoned into inutility. Here plaintiff presented no proposal for development to either the planning or zoning board. We are satisfied from the record and the testimony therein that some development may be feasible, albeit expensive. Plaintiff cannot yet assert that he has been completely precluded from using his property. See AMG Assoc. v. Springfield Tp., 65 N.J. 101, 111-114, 319 A.2d 705 (1974); Morris Cty. Land Improvement Co. v. Parsippany-Troy Hills Tp., 40 N.J. 539, 554-559, 193 A.2d 232 (1963); Sheerr v. Evesham Tp., 184 N.J.Super. 11, 53-56, 445 A.2d 46 (Law Div.1982). The trial judge did not rule on that issue and the possible inverse condemnation which was raised in the fourth count of plaintiff's complaint. Such action is presently premature.

Plaintiff contends that the amendment placing its property in a residential zone is invalid because the municipality, in amending its zoning ordinance, did not comply with N.J.S.A. 40:55D-62(a), in that the governing body did not state its reasons in the minutes of the meeting for adopting an amendment to the zoning ordinance which is in part inconsistent with the land use plan element (see N.J.S.A. 40:55D-28 b(2)) of the master plan. We note with disapproval that defendant did not respond in its brief to the argument on this issue in plaintiff's brief, and moreover, that neither party has submitted to us a copy of the master plan, even though it was in evidence below. We are, however, satisfied from our review of the record that the planning board recommended that the median strip be rezoned from commercial to office use. The township's planner testified that this recommendation was rejected because of the township council's concern for traffic problems, but the minutes of the governing body's meeting do not directly support this assertion. Plaintiff's property was zoned residential in May 1979, and in August 1979 the planner recommended that it remain so. In December 1979 plaintiff's property was placed in an R-3 residential zone.

Cases which deal with invalidation of ordinances which were adopted in violation of specific procedural requirements of the land use law include Levin v. Parsippany-Troy Hills Tp., 82 N.J. 174, 411 A.2d 704 (1980) (protest provisions); Wolf v. Shrewsbury, 182 N.J.Super. 289, 440 A.2d 1150 (App.Div.1981) (lack of publication) and Pop Realty Corp. v. Springfield Tp. Bd. of Adj., 176 N.J.Super. 441, 423 A.2d 688 (Law Div.1980) (ordinance adopted before land use element of the master plan).

N.J.S.A. 40:55D-62(a) provides that a governing body may adopt or amend a zoning ordinance relating to land use. Such an ordinance "shall be adopted after the planning board has adopted the land use plan element of a master plan." The provisions of the zoning ordinance or amendment "shall either be substantially consistent with the land use plan element of a master plan or designed to effectuate such plan element." The exception to this general rule empowers the governing body to adopt a zoning ordinance or amendment which is inconsistent with the land use plan "but only by affirmative vote of the majority of the full authorized membership of the governing body with the reasons of the governing body for so acting recorded in its minutes when adopting such a zoning ordinance." Under N.J.S.A. 40:55D-28, a master plan is to "generally comprise a report or statement and land use and development proposals." The land use plan element of the master plan should show, among other things,

... the existing and proposed location, extent and intensity of development of land to be used in the future for varying types of residential, commercial, industrial, agricultural, recreational, educational and other public and private purposes or combination of purposes.... [ N.J.S.A. 40:55D-28(b)(2) ]

We are also satisfied from the record that the land use element of the master plan suggested that the median strip be placed in an office-use category. Aside from the topography and location of plaintiff's property, such use would not have been inconsistent with existing uses and the surrounding area or at a great variance from the preexisting scheme. See Levin v. Parsippany-Troy Hills Tp., supra, 82 N.J. at 176-177, 411 A.2d 704.

It is not completely clear that the zoning ordinance amendments which rezoned plaintiff's property in a residential zone were not "substantially consistent with the land use plan element of the master plan or designed to effectuate such plan element." N.J.S.A. 40:55D-62(a). Nevertheless, we are concerned by the immediately following proviso clause of the section which does appear to be in part inconsistent with that concerning the land use plan element. The reference to "substanti...

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