Robert James Pacilli Homes, L.L.C. v. Township of Woolwich
Robert James Pacilli Homes, L.L.C. v. Township of Woolwich
Opinion of the Court
The opinion of the court was delivered by
In these consolidated appeals, we consider whether a proposed ordinance to change density and bulk standards and to increase
In 2003, the Township Committee adopted a zoning ordinance that contained the following bulk and density requirements for the R-l residential zone:
Minimum Lot Size:_87,120 sq. ft. (2 acres)
Minimum Lot Width:_185 feet_
Minimum Yards:
Front 60 feet
Side 25 feet
Rear_50 feet_
Maximum Building Coverage:_10%_
Maximum Impervious Coverage: 30%_
Maximum Building Height:_35 feet_
Maximum Gross Density:_.5 units/acre_
The 2003 zoning ordinance set the following bulk and density requirements for the R-2 residential zone as:
Minimum Lot Size:_65.340 so. ft. (1.5 acres)
Minimum Lot width:_160 feet_
Minimum Yards:
Front 50 feet
Side 20 feet
Rear_30 feet_
Maximum Building Coverage:_10%_
Maximum Impervious Coverage: 35%_
Maximum Building Height:_35 feet_
Maximum Gross Density:_0.66 units/acre_
In 2005, the Township Committee proposed certain revisions to the zoning ordinance pertaining to the R-l and R-2 residential
To achieve its stated purpose, the proposed amendment to the R-l zone “provides ... flexibility in designing new residential subdivisions ... by allowing two forms of ‘Conservation Zoning’ based upon the number of DU (dwelling units) as determined by the conventional zoning ‘by-right’ development.” Thus, Option 1, also denominated as Neutral Density and Basic Conservation, “provid[es] for residential uses at the density permitted by the underlying R-l zoning district. Greenway lands shall comprise at least half the tract.” Option 2, also denominated Country Properties, “provid[es] for very low densities appropriate to rural situations, with flexible and reduced design standards in instances where a permanent conservation easement is offered to maintain such uses.” Option 3, also denominated Conventional Lotting, continues the bulk and density provisions of the 2003 ordinance.
The following bulk and density requirements were proposed for Option 1 and Option 2 in the 2005 amendment for the R-l zone:
Option 1 Option 2
Density 87,120 sq. ft./DU maximum 10 acres/DU
gross density
Lot Size Max./ 1.3 acres NA
Min. Lot Width 150 feet
Min. Lot Width 125 feet 300 feet
Lot Size Min./ $ acre (21,780 sq. ft.) 5 acres
Min. Lot Width 100 feet 300 feet
Open Space: 50% No Common
Open Space
Yards:
Front 30 feet See Text
Side 10 feet (40 feet between Below
bldgs.)
Rear 40 feet
Max. Building Coverage: NA NA
Max. Impervious Coverage: 30% on each lot 12%
Max. Building Height: 35 feet 35 feet
The proposed yard regulations for Option 2 or Country Properties provided that front yards shall be 150 feet from the right-of-way of existing municipal roads and 40 feet from the right-of-way of new subdivision roads. The amendment proposed that rear yards should be at least 50 feet for principal buildings and 10 feet for most accessory buildings and side yards should be 25 feet.
The stated intention of the proposed amendments to the R-2 residential zone is “to provide appropriate regulations for the preservation of agriculture, natural resources, scenic vistas and the rural landscape” of the Township coincident to “the development of single-family detached dwellings and other permitted uses in portions of the Township characterized as rural.” Three development options are offered for the R-2 zone: Option 1 and Option 2 are “strongly encouraged” as “the means to best maintain the rural character while preserving open space and natural resources____” In addition, the R-2 zone is designed “to encourage the incorporation of affordable housing within the normal development of the Township.”
Option 1, also denominated the Neutral Density and Basic Conservation option, provides for “residential uses at the density
To achieve these purposes, the proposed Option 1 and Option 2 bulk and density requirements for the R-2 zone are as follows:
Option 1 Option 2
Density-65,340 sq. ft./DU max. 7 acres/DU
gross density
Lot Size Max./ 1 acre NA
Min. Lot Width 150 feet
Lot Size Avg./ 32,670 sq. ft. 7 acres
Min. Lot Width 115 feet 300 feet
Lot Size Min./ acre (21,780 sq.ft.) 3 acres
Min. Lot Width 100 feet 200 feet
Open Space: 50% No Common
Open Space
Yards:
Front 25 feet See Text
Side 10 feet (35 feet bet. bldgs.) Below
Rear 40 feet
Max. Building Coverage: NA NA
Max. Impervious Coverage: 30% on each lot 15%
Max. Building Height: 35 feet 35 feet
The proposed yard regulations for Option 2 or Country Properties provided that front yards shall be 150 feet from the right-of-way of existing municipal roads and 40 feet from the right-of-way of new subdivision roads. The amendment proposed that rear yards should be at least 50 feet for principal buildings and 10 feet for most accessory buildings and side yards should be 25 feet. The
As can be readily discerned, the proposed amendment made material changes in the bulk and density requirements in the R-l and R-2 residential zones. For new subdivisions, the ordinance as amended, expressed development preferences that effectively “down-zoned” these residential zones. The proposed ordinance, however, did not alter the permitted or conditional uses in either zone.
The Township Committee introduced the ordinance to amend the 2003 zoning ordinance on June 6, 2005, on first reading. It is undisputed that certified mail notice pursuant to N.J.S.A. 40:55D-62.1 was not provided prior to the first reading. Following the first reading, the Township Committee scheduled a second reading and a public hearing for June 20, 2005. At the public hearing, plaintiff Woolwich Landowners Association (WLA) questioned whether the proposed amendment had been referred to the Planning Board for review and comment. At the close of the public hearing, the Township Committee referred the proposed amendment to the Planning Board and tabled the amendment. On August 1, 2005, following referral to and approval by the Planning Board, the Township Committee adopted the amendments as originally proposed.
Plaintiff Robert James Pacilli Homes, L.L.C. (Pacilli), a residential developer with two major subdivision applications pending at the time the amendments to the zoning ordinance were adopted, filed a complaint in lieu of prerogative writs challenging the amended ordinance. In Count One, it asserted that N.J.S.A. 40:55D-62.1 required certified mail notice of the proposed amendments to all property owners and that the absence of such notice rendered the amended ordinance invalid. In Count Two, Pacilli alleged that the bulk standards for the Option 1 conservation clustering provision, specifically the “150-foot set back buffering requirement from any crop land or pasture land and a mandatory 300-foot buffer from preserved farmland,” are arbitrary, capri
The WLA also filed a timely complaint in lieu of prerogative writs challenging the amended ordinance. In Count One, the WLA contended that the Township Committee’s failure to provide notice of the proposed amendment was contrary to N.J.S.A. 40:55D-62.1. In Count Two, the WLA asserted that the Township Committee failed to properly refer the proposed amendment to the Planning Board. In Count Three, the WLA alleged that the amended ordinance is contrary to the Master Plan. In Count Four, it contended that the amendment is contrary to N.J.S.A. 40:55D-62 because the zoning regulations are not uniform throughout each district. Finally, in Count Five, the WLA alleged that the amendment is contrary to the Municipal Land Use Law (MLUL).
In the trial court, the parties focused on the notice issue. Pacilli and the WLA argued that the changes to the R-l, R-2 and R-3 zones were so substantial that the personal notice provision of N.J.S.A. 40:55D-62.1 was triggered. The Township responded that the amended ordinance did not change the permitted or conditional uses within any district and the amended ordinance cannot be considered a transfer of development rights ordinance; therefore, the notice required by section 62.1 was not necessary.
In an oral opinion, Judge Curio stated that the question of whether the amended ordinance effected a change in classification required a detailed analysis of the amendments. She noted that within all three residential districts, subzones or options were created, each with different bulk and density requirements. She also noted that the term “classification” is not defined in the MLUL. Therefore, “it is left to the Court’s determination as to whether what is at work in this ordinance amounts to a change in the classification.”
Judge Curio rejected the need for testimony from expert witnesses on the issue of whether the ordinance effects a change in
If we look at the ordinance and conclude, as I have, that there are if not radical at least significant changes to the zoning scheme, then it would seem appropriate that all of the safeguards of due process be brought to bear. So that the higher standard of notice required for the change in classification should be adhered to, that the persons whose property rights and interests are affected by these changes, and the citizenry at large ought to be given the opportunity for a fair hearing.
The judge certified the March 7, 2006 order invalidating Ordinance 2005-25 as final pursuant to Rule 4:42-2 and stayed the order pending appeal.
On appeal, the Township argues that the notice provided by it of the proposed amendments to its zoning ordinance met all statutory requirements. Alternatively, it contends that the issue of the nature and scope of the changes could not be resolved without testimony.
The MLUL recognizes that the development of property in a municipality affects the interests of property owners in that municipality and in adjoining municipalities. N.J.S.A. 40:55D-2, -62.1; N.Y. SMSA Ltd. P’ship v. Twp. Council of Edison, 382 N.J.Super. 541, 548-49, 889 A.2d 1129 (App.Div. 2006). Thus, any person who proposes to develop property for which certain approvals are required must provide notice to neighboring property owners and other designated entities. N.J.S.A. 40:55D-12. Generally, the notice must be given to property owners within 200 feet of the property subject to development. Ibid. A governing body is also required to provide notice to property owners when it undertakes a periodic review of its master plan, N.J.S.A 40:55D-13, and to all property owners within a district when a governing body proposes a classification or boundary change. N.J.S.A. 40:55D-62.1; see also N.J.S.A. 40:55D-63. In this appeal we are concerned only with section 62.1.
Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board pursuant to [N.J.S.A. 40:55D-89], shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district, and located, in the ease of a boundary change, in the State within 200 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing.
A notice pursuant to this section shall state the date, time and place of the hearing, the nature of the matter to be considered and an identification of the affected zoning districts and proposed boundary changes, if any, by street names, common names or other identifiable landmarks, and by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor’s office.
Notice shall be given by: (1) serving a copy thereof on the property owner as shown on the said current tax duplicate, or his agent in charge of the property, or (2) mailing a copy thereof by certified mail and regular mail to the property owner at his address as shown on the said current tax duplicate.
[N.J.S.A. 40:55D-62.1.]
Except for these circumstances, notice is ordinarily confined to those property owners within 200 feet of the property that is the subject of any zoning or planning application. N.J.S.A. 40:55D-12.
It is undisputed that the amendments to the R-l, R-2, and R-3 zones do not effect the boundaries of those zoning districts. The issue is whether the changes effect the classification of any zoning district.
Unlike many terms found in the MLUL, “classification” is not defined. “In the absence of any explicit indication of special meaning, words of a statute are to be given their ordinary and well understood meaning.” Levin v. Twp. of Parsippany-Troy Hills, 82 N.J. 174, 182, 411 A.2d 704 (1980) (citing Fahey v. City of
An examination of the MLUL also provides guidance in discerning the meaning of this term. The MLUL authorizes the governing body to “adopt or amend a zoning ordinance relating to the nature and extent of the uses of land and of buildings and structures thereon.” N.J.S.A 40:55D-62. This section also directs that “[t]he regulations in the zoning ordinance shall be uniform throughout each district for each class or kind of buildings or other structure or uses of land____” Ibid. N.J.S.A. 40:55D-65a also authorizes a zoning ordinance to limit and restrict buildings and structures “according to their type and the nature and extent of their use,” as well as to “regulate the nature and extent of the use of land for trade, industry, residence, open space or other purposes.” See also N.J.S.A 40:55D-3 (definition of conditional use as “a use permitted in a particular district only upon a showing that such use in a specified location will comply with the conditions and standards for the location or operation of such use as contained in the zoning ordinance____”).
This examination of the MLUL confirms that in its most general sense, classification refers to the use permitted in a zoning
Our research also reveals that the term “classification,” at least for purposes of section 62.1 and section 63,
Here, the scope of the changes to the R-l zone affected by the 2005 amendment is illustrated simply by focusing on the maximum gross density per acre feature of the R-l zone. The 2003 ordinance generally allowed a minimum lot size of two acres and a maximum density of .5 units per acre under certain circumstances. According to the 2005 amendment, the maximum gross density is one unit per two acres under Option 1 and one unit per ten acres under Option 2. Although continuing the “conventional” R-l zoning with its associated bulk and density requirements, the 2005 amendment expresses a preference for development pursuant to Option 1 or Option 2. This change within the R-l classification effects a fundamental alteration of the character of this zoning district. One dwelling unit for every ten acres, as encouraged by Option 2, transforms a zoning district of generous lots to one of manorial proportions. The changes in the R-2 zone are as sweeping in character.
The Township argues that a notice requirement that depends on the substantiality of a change injects an element of uncertainty into the municipal zoning and planning process that is contrary to the general purpose of the MLUL and specifically contrary to the express language of N.J.S.A. 40:55D-62.1. Admittedly, one of the purposes of the MLUL is to simplify and standardize procedures by local boards. N.Y. SMSA Ltd. P’ship, supra, 382 N.J.Super. at 548, 889 A.2d 1129. We should be extremely hesitant to adopt a rule that leaves municipal governing
Affirmed.
We confine our discussion to the details of the amendments to the R-l and R-2 zones because plaintiff Robert James Pacilli Homes, L.L.C. had development applications pending for parcels located only in the R-l and R-2 zones.
N.J.S.A. 40:55D-63 requires personal notice of the hearing on an amendment to a zoning ordinance that proposes a change in classification or boundary of a zoning district.
Reference
- Full Case Name
- ROBERT JAMES PACILLI HOMES, L.L.C., PLAINTIFF-APPELLANT/1 v. TOWNSHIP OF WOOLWICH AND THE WOOLWICH TOWNSHIP PLANNING BOARD, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS WOOLWICH LANDOWNERS ASSOCIATION, PLAINTIFF-APPELLANT/1 v. THE TOWNSHIP OF WOOLWICH, DEFENDANT-RESPONDENT/CROSS-APPELLANT
- Cited By
- 5 cases
- Status
- Published