D'Anastasio Corp. v. Township of Pilesgrove
D'Anastasio Corp. v. Township of Pilesgrove
Opinion of the Court
This matter before the court arises from plaintiffs appeal of a decision by defendant Township of Pilesgrove (Pilesgrove) denying plaintiffs petition for deannexation of 36.27 acres of vacant, undeveloped farmland owned by the Gemberling Family Partnership and located in Pilesgrove Township. Plaintiff, D’Anastasio Corp., the contract purchaser/builder of the entire Gemberling property, is seeking to deannex the portion of the Gemberling property located in Pilesgrove and annex that portion to Woodstown for purposes of development. There are no reported vacant land annexation decisions.
N.J.S.A. 40A-.7-12 permits land from one municipality to be annexed to contiguous land of another municipality. Pursuant to N.J.S.A. 40A:7-12, two-thirds of the full membership of the governing body of the municipality in which said land is located, here Pilesgrove, must consent to the annexation. N.J.S.A. 40A:7-12.1 provides the standard for judicial review when a petition is denied and provides as follows:
In any judicial review of the refusal of the governing body of the municipality in which the land is located or the governing body of the municipality to which annexation is sought to consent to the annexation, the petitioners have the burden of establishing that the refusal to consent to the petition was arbitrary or unreasonable, that refusal to consent to the annexation is detrimental to the economic and social well-being of a majority of the residents of the affected land, and that the annexation will not cause a significant injury to the well-being of the municipality in which the land is located.
The statute clearly places on the petitioner the burden to establish the following: (1) that the refusal to consent to the petition was arbitrary or unreasonable, (2) that refusal to consent to the annexation is detrimental to the economic and social well-being of a majority of the residents of the affected land, and (3) that the annexation will not cause a significant injury to the well-being of the municipality in which the land is located. The
Pilesgrove’s Refusal To Consent To Plaintiff’s Annexation Petition Was Not Arbitrary Or Unreasonable.
Pursuant to N.J.S.A. 40A:7-12.1, the petitioner has the burden of establishing that the refusal to consent to the petition was arbitrary or unreasonable. “As a general matter, in reviewing decisions of local boards our courts recognize that such bodies have particular knowledge of local conditions and are therefore extended “wide latitude in the exercise of their delegated discretion.’ ” Avalon Manor Improvement Ass’n, Inc. v. Middle Twp., 370 N.J.Super. 73, 91, 850 A.2d 566 (App.Div.) (citing Booth v. Board of Adj. of Rockaway Twp., 50 N.J. 302, 306, 234 A.2d 681 (1967)), certif. denied, 182 N.J. 143, 861 A.2d 847 (2004). There is a presumption of validity accorded to municipal actions. Russell v. Stafford Twp., 261 N.J.Super. 43, 61, 617 A.2d 685 (Law Div. 1992) (citing Ward v. Montgomery Twp., 28 N.J. 529, 539, 147 A.2d 248 (1959), and Quick Chek Food Stores v. Springfield Twp., 83 N.J. 438, 447, 416 A.2d 840 (1980)). “The law presumes that municipal governing bodies will act fairly, with proper motives and for valid reasons.” Ibid. (citing Kramer v. Sea Girt Bd. of Adj., 45 N.J. 268, 296, 212 A.2d 153 (1965)). This presumption “may only be overcome by a showing of arbitrariness or unreasonableness.” Ibid, (citing Dock Watch Hollow Quarry Pit v. Warren Twp., 142 N.J.Super. 103, 116, 361 A.2d 12 (App.Div. 1976), aff'd, 74 N.J. 312, 377 A.2d 1201 (1977); Hutton Park Gardens v. West Orange Town Council, 68 N.J. 543, 564, 350 A.2d 1 (1975), and Riggs v. Long Beach Twp., 109 N.J. 601, 611, 538 A.2d 808 (1988)); Avalon Manor, supra, 370 N.J.Super. at 90, 850 A.2d 566. “Arbitrary and capricious” means “‘willful and unreasoning action, without consideration and in disregard of circumstances.’ ” Beattystown v. Department of Envtl. Prot., 313 N.J.Super. 236, 248, 712 A.2d 1170 (App.Div. 1998) (quoting Worthington v. Fauver, 88 N.J. 183, 204-05, 440 A.2d 1128 (1982)). Application of these principles to the present matter warrants the conclusion that Pilesgrove did not
Pilesgrove denied plaintiffs petition in reliance upon Christopher Warren’s Economic and Social Impact Analysis. Preliminarily, Warren’s report concluded that 27.5 acres were buildable and would support about twelve to thirteen residential building lots under existing zoning (plaintiff contends that seven to eight residential units could be constructed under existing zoning). If the property in question (PIQ) were rezoned, assuming water and sewer were made available, then the PIQ would support sixty single family detached units. Further, the report concluded that development of the PIQ was reasonable because of the limited size of the Borough of Woodstown and the attractiveness of the town. Given the preceding preliminary conclusions, the report went on to address both economic and social impacts of the deannexation on Pilesgrove.
Concerning economic impact, Warren’s report discussed economic impacts if the subject parcel were developed under current zoning and a possible rezoning allowing for a higher density, similar to that proposed by plaintiff. Under current zoning, the economic impact would result in losses of $116,000 in annual tax revenues ($3.4 million over twenty years), a $20,000 to $40,000 development fee as a compensatory payment, a $12,000 recreation assessment fee, a $1,200 per year Farmland Trust Fund tax ($35,000 over twenty years), and $11,366 in rollback taxes. Under a rezoning, the economic impact would result in losses of $348,000 in annual tax revenues ($10 million over twenty years), a $120,000 development fee as a compensatory payment, a $3,600 per year Farmland Trust Fund tax ($106,000 over twenty years), and $11, 366 in rollback taxes. Furthermore, the Warren report concluded that Pilesgrove is in need of ratables to defer school costs because Pilesgrove has about 65% of the total ratables of the shared school district with Woodstown, but is responsible for about 75% of the total school budget. Warren’s final conclusion on economic impact is that deannexation will “have a significant economic impact.”
Relying upon Warren’s report and testimony, the Pilesgrove Planning Board recommended to the Township to refuse consent to the deannexation. The Planning Board memorialized its decision in Resolution No. 04-137, which sets forth most of the conclusions in the Warren Report. A thorough examination of the record before this court, given the legal principles enunciated in the beginning of this discussion, establishes adequate evidence to support the conclusion that defendants did not act arbitrarily or unreasonably, but rather, based their decision denying the petition in reliance upon the report prepared by and testimony of Piles-grove’s professional planner, Mr. Warren. Therefore, plaintiff cannot meet the first requirement pursuant to N.J.S.A 40A:7-12.1 establishing that defendants in denying the petition acted arbitrarily or unreasonably.
The Second Element Under N.J.S.A. 40A:7-12.1 Is Moot.
Pursuant to N.J.S.A. 40A-.7-12.1, the petitioner also has the burden of establishing that the refusal to consent to the annexation is detrimental to the economic and social well-being of a majority of the residents of the affected land. In Russell, the court interpreted the second element “to require the petitioners to show that deannexation will be beneficial to a majority of the residents of the land being deannexed.” Russell, supra, 261 N.J.Super, at 49, 617 A.2d 685. The Russell court believed that the second element is incongruous since N.J.S.A. 40A:7-12 requires that 60% of the residents sign a document requesting annexation. Ibid. However, this interpretation of the second
Plaintiff in this matter cannot establish that the refusal to consent is detrimental to the residents of the land being deannexed because there are no residents on the PIQ. Neither the owner, nor the contract purchaser resides on the PIQ, nor do any other residents. Defendant contends that without residents, plaintiff cannot prove detriment to them. Further, defendant argues that the three elements of proof are conjunctive, not disjunctive; therefore, by failing to prove the second element, plaintiff has failed to meet its burden and denial of the petition should be affirmed. This reasoning is flawed because applying this analysis then under no circumstance could the owner of vacant land petition for deannexation. However, N.J.S.A. 40A:7-12 clearly permits an owner to petition for deannexation if the land is vacant. In enacting N.J.S.A. 40A:7-12.1, the Legislature is presumed to have been aware of the provisions of N.J.S.A. 40A:7-12. Mahwah Twp. v. Bergen Cty. Bd. of Taxation, 98 N.J. 268,
Defendant also argues that if this court interprets the word “residents” in the statute broadly to include “absentee owners” and “contract purchasers of vacant land,” the only detriment would be a potential loss of marketability or profits. Although this court agrees with defendant that, if so interpreted, the only detriment would be a loss of profitability, the statute is clear on its face that the detriment is that of residents, not owners, or contract purchasers.
For purposes of a thorough analysis, plaintiff argues in its initial brief that the second element is satisfied because of the fact that 100% of the property owners being affected have signed the petition.
Plaintiff Cannot Establish That The Annexation Will Not Cause A Significant Injury To The Well-being Of The Municipality In Which The Land Is Located.
The third element of N.J.S.A. 40A:7-12.1 places on the petitioner the burden of establishing that the annexation will not cause a significant injury to the well-being of the municipality in which the land is located. This element addresses the initial standard set out in the earlier cases involving annexation petitions, however, the Legislature with the enactment of N.J.S.A. 40A:7-12.1 changed the burden of proof now requiring petitioners to show that the annexation will not cause a significant injury to the well-being of the deannexing municipality. Russell, supra, 261 N.J.Super. at 49, 617 A.2d 685.
Plaintiff contends that since the PIQ is vacant, there can be no social impact and that this position is conceded by the Township Planner, Mr. Warren. Warren never conceded that there would be no social impact. Actually, Warren’s report discusses social impact and states that due to intermunicipal services and facilities, the “potential social impact of deannexation is reduced.” Warren’s report then discusses the impact on the community image and how Pilesgrove will be deprived of the “ability to control all of its potential growth areas.” This analysis falls far short of a concession on behalf of Mr. Warren that there is no social impact.
Economic Impact
Prior to the discussion on economic impact, there are two issues involving considerations by Pilesgrove that may be viewed as too remote or speculative. First, can a municipality consider the future loss of tax revenues? Second, can a municipality consider the loss of tax revenues under current zoning or rezoning permitting greater density if the PIQ were developed? In Ryan v. Borough of Demarest, 64 N.J. 593, 603, 319 A.2d 442 (1974), the Court stated that “the municipal fathers quite properly considered the amount of both the long[-]term and short[-]term loss of revenue in determining that the proposed deannexation would mean economic injury to the Borough.” Likewise, in Avalon Manor, the court rejected an assertion that the future loss of tax revenues could not be considered in reviewing the petition and stated that “a fair analysis of the residents’ and municipalities’ well-being necessarily involves consideration of economic and social factors over time, and the prospect for and likelihood of change.” Avalon Manor, supra, 370 N.J.Super. at 102, 850 A.2d 566. Clearly, under New Jersey case law, a municipality may consider lost, future tax revenues. In addition, a municipality may consider lost revenues under current zoning or rezoning if there is the prospect for and likelihood of change. It should be noted that
Plaintiff argues that the deannexation will not result “in any real or substantial economic injury” to Pilesgrove. Plaintiffs support for this position is that the PIQ is small and the tax revenues lost from the farm would be small. However, based on Warren’s report that development of the PIQ was reasonable as discussed earlier and the law allowing Pilesgrove to consider future, lost revenues over time and the prospect for and likelihood of change concerning the PIQ, defendant properly considered the economic impact if the PIQ were developed under existing zoning or rezoning and the loss of revenues associated with such development. Such speculation over possible development and even a potential rezoning is particularly appropriate given that the subject parcel is vacant and located in an area ripe for future development. Also, plaintiffs concept plan of development, which speculates that the PIQ would be developed under greater density than currently permitted by Pilesgrove zoning, further evidences the fact that there is a prospect for and likelihood of a zoning change related to the development of the PIQ. Finally, there is simply no case law limiting the period of time into the future a municipality may consider as to lost tax revenues. This court finds that the twenty (20) year period utilized in Warren’s report to assess economic injury is reasonable, applying the controlling case law and considering the loss of future property taxes in perpetuity.
A closer examination of Avalon Manor is helpful in assessing economic impact. In Avalon Manor, the court upheld a denial of a deannexation petition that proposed annexing 2.7% of Middle Township’s lands. Id., at 77, 850 A.2d 566. The deannexing municipality relied upon the following in concluding that there would be a significant negative impact: consequences to the schools, tax increases to the remaining residents, the ongoing losses of tax revenues and ratables, and what the Board termed as the “crux” of plaintiffs application, the “ ‘tax shopping’ or avoidance of assessments.” Id., at 86, 850 A.2d 566. More particularly, the ratables loss was $32,029,700 out of $901,835,239, or 3.56% and the revenue loss was $640,000 per year (Ortman, an expert in Avalon Manor, “made clear that whatever the revenue loss from deannexation, that amount was not merely a one-time loss but would continue in subsequent years.”). Id., at 88, 850 A.2d 566. Here, Warren’s report discussed the need for ratables to defer school costs. If the subject parcel were developed, the ratables loss would be $4,000,000 out of $240,000,000, or 1.7% under current
Plaintiff’s Petition For Annexation Amounts To Zoning/Density Shopping And Is Prohibited By Case Law.
In Ryan, the court stated the following:
We find in the statute an intention on the part of the Legislature to give precedence to a more significant policy, that of preservation of municipal boundaries and maintenance of their integrity against challenge prompted by short-term or even frivolous considerations such as ‘tax shopping’ or avoidance of assessments. Ryan, supra, 64 N.J. at 606, 319 A.2d 442.
Although the Ryan opinion was delivered before the enactment of N.J.S.A. 40A:7-12.1, this “policy is still evident today.” Russell, supra, 261 N.J.Super. at 58, 617 A.2d 685; see also Avalon Manor, supra, 370 N.J.Super. at 96-97, 850 A.2d 566.
Here, what plaintiff is trying to accomplish through deannexation amounts to zoning shopping, density shopping, and/or an avoidance of zoning or density. Interestingly, not one case submitted by counsel addressing annexation involved a petition submitted by a speculator builder, but rather residents of the lands sought to be deannexed for reasons affecting those residents. This is important because the only benefit that plaintiff will receive via annexation of the PIQ to Woodstown from Piles-grove is more favorable zoning requirements, and thus, greater density resulting in more building lots and increased profits.
Dismissed.
Plaintiff's first analysis in its initial brief does not argue that the second element under NJ.S.A. 40A:7-12.1 is moot, but was otherwise satisfied. Plaintiff first raised the issue of mootness in its Reply Brief.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.