CONCERNED CITIZENS v. THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HOPEWELL (L-1782-19, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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
APPELLATE DIVISION
DOCKET NO. A-1264-20
CONCERNED CITIZENS OF
HOPEWELL AND EWING, INC.,
a not-for-profit corporation
organized under the laws of the
State of New Jersey with a mailing
address c/o Chairperson James Burd
115 Nursery Road, Titusville,
NJ 08560, and individually
THOMAS BARCLAY, who resides
at 5 Randi Way, Titusville, NJ
08560, and JAMES AND DEBRA
BURD, who reside at 115 Nursery
Road, Titusville, NJ 08560, and
MEGAN CHMIEL AND DIANA
CHMIEL, who reside at 83 Nursery
Road, Titusville, NJ 08560, and
IRENE GOLDMAN, who resides
at 45 Nursery Road, Ewing, NJ
08560, and ANDREA MATHEWS,
who resides at 107 Nursery Road,
Titusville, NJ 08560, and
CHARLES MORREALE, who
resides at 107 Nursery Road,
Titusville, NJ 08560, and MIKE
NATALE, who resides at
49 Nursery Road, Titusville,
NJ 08560, and DR. STEVE AND
COLETTE PLANK, who reside
at 24 Todd Ridge Road,
Titusville, NJ 08560, and THOMAS
STEVENSON, who resides at
103 Nursery Road, Titusville,
NJ 08560, and LISA AND
NED WEINTRAUB, who reside
at 109 Nursery Road, Titusville,
NJ 08560, and PATRICIA WHITE,
who resides at 4 Anna Marie Drive,
Ewing, NJ 08560,
Plaintiffs-Appellants,
v.
THE TOWNSHIP COMMITTEE
OF THE TOWNSHIP OF
HOPEWELL, the governing
body of a municipality of the
State of New Jersey with offices
at 201 Washington Crossing-
Pennington Road,
Titusville, NJ 08560,
Defendant-Respondent.
_______________________________
DEER VALLEY REALTY, INC.,
Intervenor-Respondent.
_______________________________
Submitted September 12, 2022 – Decided October 3, 2022
Before Judges Whipple, Smith, and Marczyk.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-1782-19.
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Potter and Dickson, attorneys for appellants (R.
William Potter and Peter D. Dickson, on the brief).
Parker McCay, PA, attorneys for respondent The
Township Committee of the Township of Hopewell
(Steven P. Goodell, of counsel and on the brief; Linda
A. Galella, of counsel; Scott T. Miccio, on the brief).
Norris McLaughlin, PA, attorneys for intervenor-
respondent Deer Valley Realty, Inc. (David C. Roberts,
of counsel and on the brief; James V. Mazewski, on the
brief).
PER CURIAM
This appeal addresses Hopewell Township's (the Township) actions to
balance its goal of affordable housing as against its plan for preservation of the
Township's rural character. We affirm.
Plaintiffs are Concerned Citizens of Hopewell and Ewing, Inc.,
(Concerned Citizens), Thomas Barclay, James and Debra Burd, Diana and
Megan Chmiel, Irene Goldman, Andrea Mathews, Charles Morreale, Mike
Natale, Steve and Colette Plank, Thomas Stevenson, Lisa and Ned Weintraub,
and Patricia White (collectively, plaintiffs). They appeal from a November 30,
2020 Law Division final judgment entered in favor of defendant the Township
Committee of the Township of Hopewell (Township Committee) upholding a
zoning change and dismissing plaintiffs' complaint with prejudice.
A-1264-20
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The record informs our decision. In May 2002, the Township adopted its
Master Plan. The Land Use Element of the Master Plan explains:
Open lands zoning permits property owners in the
Valley Resource Conservation [(VRC)] District a
density of approximately one unit per [six] acres,
provided that a significant remainder ([sixty] to
[seventy] percent of the parcel) is permanently deed
restricted against future residential use and remains
available for agricultural or other resource conservation
uses. . . .
....
[T]he preferred development alternatives for the Valley
and Mountain Resource Conservation Districts will
maintain large contiguous tracts of farmland and other
open lands, promote continued agricultural use of prime
agricultural lands and maintain the delicate balance
among the various components of the natural systems
....
In December 2002, the Township Committee adopted zoning Ordinance
No. 02-1268, establishing a Mountain Resource Conservation zoning district
and the VRC zoning district, which was substantially comprised of agricultural
fields. Greenwood v. Mayor & Twp. Comm. of Hopewell, No. A-1910-06 (App.
Div. Aug. 14, 2008) (slip op. at 1–3). The purpose of these districts was to:
comprehensively address the interrelated goals of
protecting groundwater quantity and quality,
maintaining surface water resources, conserving the
scenic rural character, addressing limiting soil
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condition and promoting continued agricultural use
opportunities, while also providing a range of
development opportunities that offer alternatives for
the landowner.
[Id. at 4 (quoting Ordinance No. 02-1268).]
In 2015, the Township filed a declaratory judgment action to determine
its constitutional obligations to provide its fair share of affordable housing
pursuant to S. Burlington Cnty. NAACP v. Mt. Laurel, 92 N.J. 158 (1983) (Mt.
Laurel II). Four affordable housing developers, including CF Hopewell CC&L,
LLC (CF Hopewell), intervened in that matter. Deer Valley Realty, Inc. (Deer
Valley), intervenor in this matter, did not then intervene.
In 2017, the Township's first court-approved settlement with the four
intervening developers concluded the Township's then-current and prospective
need for affordable housing was 1,141 units, covering the years 2015 through
2025. Thereafter, the Township submitted its Housing Element and Fair Share
Plan (HEFSP) to the court for approval. Deer Valley appealed the plan and filed
a separate action in the Law Division challenging the Township's actions to
implement the plan. In December 2017, the court conducted a Compliance
Hearing, and, on January 10, 2018, entered a Third Round Judgment of
Compliance and Repose.
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On June 24, 2019, the Township, the four intervenors, and Deer Valley
entered a Global Settlement Agreement resolving matters pertaining to the
Township's and Deer Valley's actions. The agreement provided some of the
affordable housing units would be located on land owned by Deer Valley while
others would be located on land owned by CF Hopewell. Deer Valley also
agreed to "use its best efforts to develop a hotel, conference center, [and]
restaurant."
On July 1, 2019, the Township Committee introduced an ordinance
"establish[ing] a new Inclusionary Multi-family and Commercial (IMF-C)
[Zone] in place of the current [VRC] Zone for Block 93, Lots 19, 20, 32, 44,
45.01, 46, 60 and Block 93.05, Lots 1 and 2" (the IMF-C Ordinance). The IMF-
C Ordinance allows for inclusionary multifamily residential and related
commercial development, on a 213-acre tract owned by Deer Valley and CF
Hopewell. Specifically, the IMF-C Ordinance permits a maximum of 625 age-
restricted residential units in the IMF-C Zone, with a twenty percent set-aside
for affordable housing up to 125 units.
Professional planners, Banisch Associates, Inc., prepared a July 22, 2019
memorandum used by Hopewell Township Planning Board (Planning Board) to
evaluate the Township Committee's actions:
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The [Planning] Board has compared the proposed
ordinance to the Land Use Plan Element of the 2002
Master Plan, the 2005 Circulation Plan and the July 18,
2019 Housing Plan Element. The IMF-C Zone is
inconsistent with the VRC designation uses
programmed for this site in the Land Use Plan.
Notwithstanding this Land Use Plan inconsistency, the
proposed IMF-C Zone advances many goals of the
Hopewell Township Master Plan. These include
developing a balanced land use plan, providing for safe
and convenient traffic flow and meeting the
constitutional mandate to provide for the Township's
fair share of the regional need for affordable housing.
The Planning Board approved Resolution No. 19-019, making findings of
fact and conclusions, including:
1. The proposed ordinance establishes a new [IMF-C
Zone] in place of the current [VRC] [Z]one for Block
93, Lots 19, 20, 32, 44, 45.01 46, 60 and Block 93.05,
Lots 1 and 2.
2. The IMF-C zone is being established in furtherance
of a settlement agreement among Hopewell Township,
Deer Valley Realty, Inc., CF Hopewell CC&L, LLC
and Fair Share Housing Center and provides for
inclusionary multi-family development of up to 625
single family retirement homes and permits a variety of
retail and services uses, including a hotel.
3. The [Planning] Board has compared the proposed
ordinance to the Land Use Plan Element of the 2002
Master Plan, the 2005 Circulation Plan and the July 19,
2019 Housing Plan Element.
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4. The IMF-C [Z]one is inconsistent with the VRC
designation uses programmed for this site in the Land
Use Plan.
5. Notwithstanding this Land Use Plan inconsistency,
the proposed IMF-C [Z]one advances many goals of the
Hopewell Township Master Plan. . . .
The Planning Board recommended the Township Committee adopt the
IMF-C ordinance because it would advance several goals of the Hopewell
Township Master Plan and the Municipal Land Use Law (MLUL), N.J.S.A.
40:55D-2.
After a public hearing, the Township Committee adopted the IMF-C
Ordinance by a majority vote.
The Township Committee explained the purpose and vision of the IMF-C
Ordinance as follows:
The IMF-C [Zone] provides for a mixed-use
community of inclusionary, age-restricted housing and
non-residential commercial and office uses. . . [The
Global Settlement Agreement] requires that the subject
area will include a [twenty percent] set aside of all
residential units (up to 125 units) which will be deed-
restricted affordable to very low, low and moderate
incomed households. A variety of housing types are
encouraged to meet the needs of a variety of potential
residents. . . .
Additionally, non-residential opportunities along
the [Zone's] eastern roadway frontages are provided to
capitalize on the area's adjacency to minor (Scotch
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Road) and primary (Interstate Route 295) arterial
roadways, and the pass-by trips those roadways
command. Potential customers will also be drawn from
nearby major employers as well as the planned new and
existing communities in the area. Neighborhood-scale
uses are envisioned, rather than regionally-scaled
facilities
....
To implement the Township Committee's vision and achieve its stated
purpose, the IMF-C Ordinance permits various non-residential uses such as
pharmacies and banks if "comprehensively planned in conjunction with an
inclusionary housing project and are wholly located, excluding stormwater
management facilities and required buffers, within 1,300 feet of Scotch Road."
It also permits "[u]tility structures and facilities needed to provide the direct
service of gas, electricity, telephone, water, sewerage and cable television." The
Ordinance does not permit "rapid-dispense diesel or other fuel stations suitable
for use by tractor-trailers."
The ordinance also mandated a minimum of twenty percent of open space,
including "wetlands, wetland buffers, riparian zone, stormwater management
basins, and outdoor recreation space." Further, it requires "[a]ll dwelling units
within a structure [to] be connected to approved and functioning public water
and sanitary systems prior to the issuance of certificates of occupancy."
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Finally, the ordinance requires a phasing plan for all project elements, as
well as a "site design demonstrating the features of a human-scale, compact,
walkable and bicycle-compatible community, which encourages the
conservation of environmental features and the creation of open spaces and
improved neighborhood recreation areas."
The Township Committee concurrently adopted Resolution #19-251,
setting forth its reasons for adopting the IMF-C Ordinance. It acknowledged
that, although "the proposed IMF-C zone was inconsistent with the intent and
purpose of the Land Use Plan of the [2002] Master Plan,"
1. The IMF-C . . . Ordinance advances many goals
of the Hopewell Township Master Plan,
including the following:
• The ordinance develops a balanced land
use plan providing for safe and convenient
traffic flow and meets the constitutional
mandate to provide for the Township's fair
share of the regional need for affordable
housing.
• The 2002 Master Plan includes the
following identified objectives under the
heading "Land Use and Management["]:
To provide for a reasonable balance among
various land uses that respects and reflects
the interaction and synergy of community
life.
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• The 2002 Master Plan provides for a
variety of housing types, promotes and
supports development and redevelopment
of affordable housing intended to address
the Township's fair share of the region's
lower income housing and provides for a
range of housing opportunities within the
Township.
2. The [HEFSP] has been amended to provide for
the proposed zoning to address the terms of the
global affordable housing settlement.
3. The proposed ordinance will improve the balance
of land uses sought in the Master Plan by
diversifying the development along Scotch Road
to include retirement housing.
4. The proposed development contemplated by the
proposed zoning standards should result in a
compact building layout and design.
5. The proposed rezoning will advance the goal of
diversifying the housing stock and providing
affordable housing to meet the constitutional
obligation.
6. The proposed ordinance expands the inclusionary
development node along Scotch Road and will
provide affordable housing in walking distance to
the jobs at Capital Health.
7. The proposed ordinance includes retirement
housing which addresses the needs of aging baby
boomers and serves to reduce the school demands
of inclusionary development.
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8. The proposed ordinance includes commercial
development as part of this evolving
neighborhood and will serve emerging needs and
provide a small component of nonresidential
ratables on a site where millions of square feet of
office research space were previously planned.
9. The proposed ordinance provides for a mix of
residential and non-residential uses at this
interchange location and is consistent with the
smart growth planning objectives of the [State
Development and Redevelopment Plan (State
Plan)].[1]
1
The State Development and Redevelopment Plan was authorized by N.J.S.A.
52:18A-200, which says that the State Plan "shall be designed to represent a
balance of development and conservation objectives best suited to meet the
needs of the State" and lists several requirements:
The plan shall:
a. Protect the natural resources and qualities of the
State . . . ;
b. Promote development and redevelopment in a
manner consistent with sound planning and where
infrastructure can be provided at private expense or
with reasonable expenditures of public funds. . . ;
c. Consider input from State, regional, county and
municipal entities concerning their land use,
environmental, capital and economic development
plans . . . ;
d. Identify areas for growth, limited growth,
agriculture, open space conservation and other
appropriate designations that the commission may
deem necessary;
e. Incorporate a reference guide of technical planning
standards and guidelines used in the preparation of the
plan; and
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In August 2019, the court held a second fairness hearing to determine
whether Hopewell Township satisfied the conditions in the Third Round
Judgment of Compliance and Repose and whether to approve the amended
HEFSP that now included the Deer Valley land. The court considered a report
of Special Master John D. Maczuga, P.P. and his direct testimony; the testimony
of the Township's engineer, Mark Kataryniak, and planning consultant, Frank
Banisch of Banisch Associates; arguments of counsel; public comments; and
counsel for plaintiffs and their expert Peter Steck. Special Master Maczuga
concluded the amended HEFSP and the Global Settlement Agreement were "fair
and reasonable to the interests of low and moderate income households and
created realistic opportunities for the provision for low and moderate income
households during the period 1987 through July 1, 2025." Special Master
Maczuga recommended the court approve both the amended HEFSP and the
Global Settlement Agreement.
Thereafter, plaintiffs filed a second amended complaint in lieu of
prerogative writs in which they alleged the Township: failed to provide
f. Coordinate planning activities and establish
Statewide planning objectives in [certain listed areas].
[N.J.S.A. 52:18A-200.]
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minimally adequate public notice (First Count); adopted an arbitrary, capricious ,
and unreasonable ordinance (Second Count); failed to identify substantial and
credible evidence in the record to support and justify the radical rezoning of the
subject property from VRC, low-density and conservation, to high density
residential and commercial (Third Count); and violated the Environmental
Rights Act, N.J.S.A. 2A:35A-1 to -14 (Fourth Count).
On September 27, 2019, the court entered a Final Amended Third Round
Judgment of Compliance and Repose Without Conditions. The court agreed
with the Special Master's findings and further found that the Township will
comply with its "constitutional fair share housing obligations for the period 1987
to July 1, 2025[,] under the [Fair Housing Act] and the constitutional doctrines
enunciated in the Mount Laurel cases." On October 9, 2019, the court entered a
consent order granting Deer Valley leave to intervene.
The parties dismissed the Environmental Rights Act claim by stipulation.
On December 9, 2019, the court denied summary judgment to plaintiffs as to the
inadequate public notice claim and dismissed the First Count and paragraphs
twenty-four and twenty-five of the Second Count alleging inadequate notice.
Mercer County Assignment Judge Mary C. Jacobson commenced a bench
trial on the remaining issues. Weintraub, as the spokesperson for Concerned
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Citizens, testified that plaintiffs were concerned about the rezoning's impact on
traffic, the rural nature of the neighborhood, and the environment. Weintraub
particularly objected to the prospective commercial development as "gratuitous
and non-necessary" as the area already has three hotels and gas stations on either
side of the highway exit.
Former Township Committee member, mayor, and official John Edwards
testified as to potential sewage and nitrate contamination issues the Township
Committee considered when it adopted the 2002 Master Plan. He testified the
affordable housing and commercial complexes contemplated in the HEFSP
would use public water from Trenton.
Former Township Committee member, Planning Board member, mayor,
and deputy mayor Mary Lou Ferrara testified she was also involved in the
development of the 2002 Master Plan. She testified the Township "wanted to
retain the . . . rural environment. The Township wanted to promote agricultur[e]
as a viable way of life[,] . . . limit traffic and its impact[,] and . . . minimize
excess energy consumption."
A former state official and Planning Board member, William Connolly,
echoed the previous witnesses' objections to the rezoning's creation of "sprawl
development" in place of the Township's rural character.
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Judge Jacobson accepted plaintiffs' witness Peter Steck as an expert in
land use, planning, and zoning. Steck testified the rezoned land "is almost
exclusively agricultural land," and the development area has no public water and
sewer services. He opined that the redevelopment area is not walkable as it is
0.8 miles from Scotch Road. In his professional opinion, the rezoning of the
Deer Valley property was inconsistent with the farmland preservation plan, and
the Township Committee did not consider traffic issues in voting for the
rezoning. Steck concluded the IMF-C Ordinance, by including commercial
uses, "is an example of bad planning." He added that the Ordinance is
"procedurally defective" because the 2002 Master Plan did not contain a
commercial component to the housing element. Steck also opined that the IMF-
C Zone constitutes sprawl. He conceded that the farmland in the Deer Valley
property in the IMF-C Zone is not in the Township's agricultural development
area; the zone was residential and permitted agriculture but was not dedicated
to agriculture.
Hopewell Township Director of Community Development, Township
Engineer, and Zoning Officer Kataryniak testified for the Township. He is
certified as a professional traffic operations engineer. The court accepted him
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as an expert in civil engineering, traffic engineering, and community
development. Kataryniak wrote the IMF-C Ordinance with Banisch.
Kataryniak testified the IMF-C zoned properties are northwest of the
intersection of Scotch Road, which is a principal arterial roadway, and I-295.
He explained that, after applying its credits, the Township's need for affordable
housing was 653 new units, and, of those 653 units, 465 are located within the
Scotch Road area. He explained that the Township had difficulty siting the
affordable housing units, and it tried "to accommodate [as] best [it] could
projects that would be relatively compatible with the area and not excessive in
height or compactness with respect to light aerial open space between the
buildings themselves."
Eventually, the Township and the intervening parties arrived at an
agreement that involved building some affordable housing units on the Deer
Valley property, which would decongest the area and generate less peak-hour
traffic. The commercial uses in the area would include a convenience store and
an automobile service station, which "wouldn't generate, necessarily, new trips
to the area." Rather, it would be "convenience traffic" for vehicles already
passing by. Moreover, a hotel and conference center can be built only in
conjunction with development on the inclusionary housing project. In addition,
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"accessory structures," such as gas stations, are permissible in conjunction with
residential or commercial uses. Any gas station, however, would not permit use
by large trucks. Overall, in Kataryniak's view, the IMF-C Ordinance involves
developers establishing a "phasing plan [so that the Township may] determine
that the commercial and market rate housing is built . . . in a coordinated way
with the affordable housing, so that you can't have too much market or
commercial development before the affordable housing development gets built."
Banisch next testified as an expert witness in professional planning and
affordable housing planning for the Township. He testified the State Plan is not
binding on municipalities, but "it is a guidance tool for use by both State
agencies, counties and municipalities to assist in bringing better forms of
development, and conservation and preservation as a comprehensive package,
so that the preservation and the conservation is a byproduct of development in
many respects." He explained the State Plan advocates for center-based
development, which "would be a grouping of a variety of types of uses that have
the synergistic relationship between when they're brought together." Banisch
further explained:
What I was saying was that when we combined
healthcare uses, the employment uses, the commercial
service uses, and the very dense and significant number
of residential uses, we have now put together the
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combination that the State Plan has envisioned in its
intent as what a center would be consisting of. . . . This
is the opposite of sprawl.
Addressing Steck's opinion that the rezoned redevelopment area would
not be walkable, Banisch replied:
Certainly by today's standards the area is farmland. So,
if you’re asking is it walkable now? Not really. Will it
be walkable when these developments occur, and are
interconnected with one another? Absolutely. And the
inherent walkability of this center is going to result [in]
a couple of things. The residential neighborhoods that
will be constructed both on Deer Valley's property and
on the adjoining CF Hopewell properties will all have
sidewalks, and a network of nature trails, including
trails into and through the protected open space . . . .
I'm sure as a result of the approvals that'll be coming
there that the frontage of Scotch Road will also get
sidewalks, that'll be an onsite improvement for
somebody that will be made as part of this overall
development. And I believe that pedestrians will be
able to safely cross Scotch Road at the signalized
intersections that exist today. So, if walkability is
measured by whether a neighborhood is outfitted with
sidewalks and safe ways to cross the street, I believe
that we can count on that happening in the future here.
Banisch also testified that the Deer Valley property was not part of the
Township's farmland preservation plan and that the IMF-C Ordinance will
require the extension of public sewer and public water.
On November 25, 2020, Judge Jacobson placed her decision on the record.
She explained that plaintiffs' challenge to the IMF-C Ordinance was mainly
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against the commercial uses of the rezoned area and their claim the ordinance
constituted "bad planning." She noted that the standard of review for ordinance
challenges is set forth in Riggs v. Long Beach, which stated zoning ordinances
are protected by "a presumption of validity, which may be overcome by a
showing that the ordinance is 'clearly arbitrary, capricious or unreasonable, or
plainly contrary to fundamental principles of zoning or the [zoning] statute .'"
109 N.J. 601, 610–11 (1988) (quoting Bow & Arrow Manor v. Town of W.
Orange, 63 N.J. 335, 343 (1973)). The judge further explained the zoning
ordinance must satisfy and advance at least one of the purposes of the MLUL.
Moreover, "[t]he ordinance should be substantially consistent with the land use
plan element and the housing element of the municipality's master plan unless
the requirements . . . of the [MLUL] are otherwise satisfied. . . ." To successfully
challenge a zoning ordinance, the judge concluded, a plaintiff must show clear
and compelling evidence to overcome the presumption of validity.
Judge Jacobson noted: "[N.J.S.A. 40:55D-62] doesn't contain a
requirement that the specific inconsistency between the proposed ordinance and
the [M]aster [P]lan be identified or that the reason for adopting the ordinance be
grounded in the [M]aster [P]lan." Because the Township's resolution stated the
reasons for deviating from the Master Plan, the judge found the requireme nts
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under N.J.S.A. 40:55D-62 were satisfied. She further noted that the MLUL does
not require an extensive report identifying inconsistencies, and the planning
board did identify provisions inconsistent with the Master Plan. Thus, the court
rejected plaintiff's challenge to the IMF-C Ordinance.
Additionally, Judge Jacobson found plaintiffs did not meet their burden
of showing that the adoption of the IMF-C Ordinance was arbitrary and
capricious. The judge summarized the testimony and made the following
findings. Plaintiffs' focus on water quality, which was highlighted in the 2002
Master Plan, was unnecessary because the IMF-C Ordinance required the
provision of public sewers and water. Plaintiffs' case in relation to its claim the
IMF-C Ordinance constituted bad planning relied completely on Steck's
testimony. But Steck's testimony was contradicted by the Township's experts,
and the court questioned his credibility on cross-examination. For example, the
judge noted:
[Steck] refused to answer when pressed on cross-
examination whether it made sense to have a hotel and
gas station right near the interstate and right near a large
hospital where family members could have relatives
and friends of people staying at the hospital where it
made sense.
Again, [defendant's counsel] did make some
headway in terms of cross-examination where . . . Steck
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said it might be useful to have some commercial uses
near a hospital.
By contrast, the judge found the Township's witnesses' testimony more
persuasive. The court noted the Township required commercial development
"to be done in a cooperative, integrated way," in conjunction with affordable
housing development. Moreover, the roads in the redevelopment zone could
handle mostly "pass-by traffic," meaning "people working at the hospital, living
in the area, working at the offices, as . . . mentioned, pharmacy, convenience
stores, that kind of thing." The court highlighted Banisch's testimony that the
area was not identified as a center twenty years ago, but, since the area has
evolved, the IMF-C Zone "fulfills the aims of what the [S]tate [P]lan wanted
with centers." Furthermore, although the ordinance was inconsistent with the
Master Plan, the Planning Board "agreed that the IMF-C uses were an
appropriate deviation from the [M]aster [P]lan . . . helping to satisfy the
affordable housing obligation for [the Township] and then having commercial
development that would address the needs of the new residents and the
employees in the area." As a result, Judge Jacobson found the Township's
representatives' testimony reasonable and credible.
Overall, Judge Jacobson decided that the Township's position was "by far
and away the better one," and plaintiffs' testimony "did not provide the kind of
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evidence that is necessary to show that . . . the IMF-C [O]rdinance is arbitrary,
capricious and unreasonable." Therefore, she concluded:
[T]he [c]ourt finds that for the reasons [stated] earlier
that the ordinance does promote the purposes of the
zoning as required by the [MLUL] at N.J.S.A. 44:55D-
2 and Riggs, [109 N.J. at 612], and that the reasons
given in the ordinance are, in fact, supported by the
ordinance itself as was (indiscernible) in the expert's
testimony. [T]he ordinance is obviously going to
support affordable housing (indiscernible) one purpose
of zoning in the [MLUL]. That certainly is one of them,
but the [c]ourt finds that there is not any conflict with
the development in terms of harming the general
welfare of the state or neighboring municipalities. You
know, again the proximity to I-295 is . . . one of the
other reasons that development has come here and is
consistent with the area in general to provide more
higher residential densities as a part of Hopewell that's
close to the interchange of 295 rather than farther away
where . . . a large amount of the agricultural area is
located.
And the [c]ourt finds that the aim of the
ordinance is to provide a desirable visual environment
with good design, walkability and the ordinance being
appropriate for good visual impact.
And so the record in this case is one that the
[c]ourt is convinced provides support for the ordinance
and that there is—that plaintiff[s'] case does not show
that the ordinance is arbitrary or capricious.
On November 30, 2020, the court entered final judgment in favor of the
Township. This appeal followed.
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Plaintiffs asserts the IMF-C Ordinance violates the New Jersey
Constitution and is, therefore, arbitrary and capricious. Specifically, plaintiffs
argue:
because the IMF-C [O]rdinance provides for intensive
residential and jaw-dropping variety of commercial
uses on previously-zoned VRC prime agricultural
property contrary to State Plan Planning Area 3 (fringe)
guideline and contrary to the Master Plan, and has
neither sewerage service nor public potable water
service, and is therefore unsuitable for such a massive
development, the court must judge the ordinance as
arbitrary and capricious, unreasonable, and contrary to
fundamental sound land-use planning and zoning.
Plaintiffs' argument relies on the incorrect legal standard and otherwise
lacks merit. "[Z]oning boards, 'because of their peculiar knowledge of local
conditions[,] must be allowed wide latitude in the exercise of delegated
discretion.'" Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Twp. of
Franklin, 233 N.J. 546, 558 (2018) (alteration in original) (quoting Price v.
Himeji, LLC, 214 N.J. 263, 284 (2013)). "As a general principle, a municipal
ordinance is afforded a presumption of validity, and the action of a board will
not be overturned unless it is found to be arbitrary and capricious or
unreasonable, with the burden of proof placed on the plaintiff challenging the
action." Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015) (citing
Price, 214 N.J. at 284). "Only a showing of 'clear and compelling evidence' may
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overcome this presumption." Cona v. Twp. of Washington, 456 N.J. Super. 197,
215 (App. Div. 2018) (citing to Spring Lake Hotel & Guest House Ass'n. v.
Spring Lake, 199 N.J. Super. 201, 210 (App. Div. 1985)). "Courts should not
question the wisdom of an ordinance, and if the ordinance is debatable, it should
be upheld." Riggs, 109 N.J. at 611 (citing to Bow & Arrow Manor, 63 N.J. at
343).
Moreover, "[i]n construing the meaning of a statute, an ordinance, or . . .
case law, [appellate] review is de novo." 388 Route 22 Readington Realty
Holdings, LLC v. Twp. of Readington, 221 N.J. 318, 338 (2015) (citing to
Farmers Mut. Fire Ins. Co. of Salen v. N.J. Prop. Liab. ins. Guar. Ass'n, 215 N.J.
522 (2013)). "[A] board's decision regarding a question of law . . . is subject to
a de novo review by the courts, and is entitled to no deference since a zoning
board has 'no peculiar skill superior to the courts' regarding purely legal
matters." Dunbar Homes, 233 N.J. at 559 (quoting Chicalese v. Monroe Twp.
Planning Bd., 334 N.J. Super. 413, 419 (Law Div. 2000)).
In Riggs, our Supreme Court explained:
Although the judicial role is circumscribed, a court may
declare an ordinance invalid if in enacting the
ordinance the municipality has not complied with the
requirements of the statute. . . . Generally, a zoning
ordinance must satisfy certain objective criteria. First,
the ordinance must advance one of the purposes of the
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Municipal Land Use Law as set forth in N.J.S.A.
40:55D-2. . . . Second, the ordinance must be
"substantially consistent with the land use plan element
and the housing plan element of the master plan or
designed to effectuate such plan elements," N.J.S.A.
40:55D-62, unless the requirements of that statute are
otherwise satisfied. Third, the ordinance must comport
with constitutional constraints on the zoning power,
including those pertaining to due process. . . equal
protection . . . and the prohibition against confiscation
. . . . Fourth, the ordinance must be adopted in
accordance with statutory and municipal procedural
requirements. . . .
[109 N.J. at 611–12 (internal citations omitted).]
"The limited scope of appellate review requires deference to the trial
court's findings when supported by adequate, substantial, and credible
evidence." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293 (2001).
Based upon our review and for the reasons outlined by Judge Jacobs on,
we also conclude plaintiffs did not meet their burden to show the Township's
adoption of the IMF-C Ordinance was arbitrary, capricious, or unreasonable
under Riggs, and plaintiffs' argument fails because they rely on the incorrect
legal standard.
Under the first prong of Riggs, 109 N.J. at 611, having found the
Township's experts more credible than plaintiffs' and following a review of the
Ordinance itself, the court properly concluded the IMF-C Ordinance advanced
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at least one purpose of the MLUL, N.J.S.A. 40:55D-2. First, although the trial
court did not provide the specific statutory basis for its conclusion that the IMF -
C Ordinance will support affordable housing as one purpose of the MLUL, we
conclude the trial court nonetheless applied the correct construction of the
statute. The first purpose of the MLUL is "to encourage municipal action to
guide the appropriate use or development of all lands in this State, in a manner
which will promote the public health, safety, morals, and general welfare,"
N.J.S.A. 40:55D-2(a). The provision of affordable housing unquestionably
advances the general welfare. See Mt. Laurel II, 92 N.J. at 208–09.
Furthermore, substantial credible evidence supports the trial court's conclusion
that the Ordinance will support affordable housing as it will require at least
twenty percent of new housing units to be affordable.
Second, substantial credible evidence supports the court's finding that the
IMF-C Ordinance "does not conflict with the development and general welfare
of neighboring municipalities, the county and the State as a whole," N.J.S.A.
40:55D-2(d). The court pointed to the IMF-C Zone's proximity to I-295, which
has spurred development "consistent with the area in general to provide more
higher residential densities" closer to I-295 and farther from the agricultural
areas.
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Third, substantial credible evidence supports the court's finding that the
IMF-C Ordinance will "promote a desirable visual environment through creative
development techniques and good civic design and arrangement," N.J.S.A.
40:55D-2(i), by incorporating "good design, walkability . . . and good visual
impact." Indeed, the Ordinance requires "site design demonstrating the features
of a human-scale, compact, walkable and bicycle-compatible community, which
encourages the conservation of environmental features and the creation of open
spaces and improved neighborhood recreation areas." Thus, the court properly
construed the MLUL and relied on substantial credible evidence to conclude that
the IMF-C Ordinance satisfied at least one purpose of the statute.
Next, under the second prong of Riggs, 109 N.J. at 611, the court properly
found that, despite the IMF-C Ordinance's inconsistency with the Master Plan,
the Township satisfied N.J.S.A. 40:55D-62.
N.J.S.A. 40:55D-62(a) states, in pertinent part:
[T]he governing body may adopt a zoning ordinance or
amendment or revision thereto which in whole or part
is inconsistent with or not designed to effectuate the
land use plan element and the housing plan element, but
only by affirmative vote of a majority of the full
authorized membership of the governing body, with the
reasons of the governing body for so acting set forth in
a resolution and recorded in its minutes when adopting
such a zoning ordinance . . . .
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"Inconsistency between a zoning amendment and the [M]aster [P]lan is
not fatal to a zoning amendment." Willoughby v. Planning Bd. of Twp. of
Deptford, 326 N.J. Super. 158, 165 (App. Div. 1999) (Willoughby II). However,
it does trigger three procedural requirements as set forth in N.J.S.A. 40:55D -
62(a). First, N.J.S.A. 40:55D-62(a) "requires an initial finding of inconsistency
by the governing body when it adopts a zoning amendment which is in fact
determined to be inconsistent with the [M]aster [P]lan." Willoughby v. Wolfson
Grp., 332 N.J. Super. 223, 226–27 (App. Div.), certif. denied, 165 N.J. 603(2000) (Willoughby III). In that case, the governing body did not do so; thus,
the trial court awarded summary judgment to the challengers of the zoning
ordinance. Id. at 226–27. We affirmed, concluding that "before adopting a
zoning amendment inconsistent with the master plan, the governing body must
expressly recognize the inconsistency." Id. at 229. Second, a "majority of the
full authorized membership of the governing body" must affirmatively vote for
the zoning ordinance inconsistent with the Master Plan. Id. at 226. Third, "the
governing body's reasons 'for so acting' must be expressed 'in a resolution and
recorded in its minutes.'" Ibid.
Here, substantial credible evidence in the record supports the court's
findings that the Township complied with N.J.S.A. 40:55D-62(a). The court
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noted the Planning Board, despite "identify[ing] provisions that were
inconsistent with the [M]aster [P]lan," recommended the adoption of the IMF -
C Ordinance. The Planning Board did so in its July 22, 2019 memorandum to
the Township Committee, and by approving Resolution No. 19-019 stating, in
pertinent part:
1. The proposed ordinance establishes a new . . . (IMF-
C) [Zone] in place of the current . . . (VRC) [Z]one for
Block 93, Lots 19, 20, 32, 44, 45.01 46, 60 and Block
93.05, Lots 1 and 2.
....
3. The Board has compared the proposed ordinance to
the Land Use Plan Element of the 2002 Master Plan, the
2005 Circulation Plan and the July 19, 2019 Housing
Plan Element.
4. The IMF-C zone is inconsistent with the VRC
designation uses programmed for this site in the Land
Use Plan.
The Township Committee acknowledged those inconsistencies in Resolution
#19-251, even though the court opined the Planning Board's report "could have
been more detailed." A majority of the Township Committee, or three of the
five members, voted to adopt the IMF-C Ordinance, and Resolution #19-251.
Thus, the trial court did not err.
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We also reject plaintiffs' third argument that the governing body must set
forth "detailed reasons for recommending and enacting a zoning ordinance
which was so inconsistent with the Master Plan." As the trial court correctly
explained: "[N.J.S.A. 40:55D-62] doesn't contain a requirement that the specific
inconsistency between the proposed ordinance and the [M]aster [P]lan be
identified or that the reason for adopting the ordinance be grounded in the
[M]aster [P]lan."
Neither the plain text of the statute nor the cases cited support plaintiffs'
contention that municipalities must provide "detailed reasons" for adopting
zoning ordinances inconsistent with their master plans. In Willoughby II, we
concluded that ordinance was inconsistent with the master plan and the
governing board did not acknowledge the inconsistency. 326 N.J. Super. at 162,
165. We remanded the matter for the trial court to determine whether, despite
not finding the zoning ordinance inconsistent, the board complied with N.J.S.A.
40:55D-62 by explaining its reasons in its resolution and "Whereas" clauses in
the ordinance. Id. at 166. And, in Willoughby III, earlier discussed, we required
municipalities enacting zoning ordinances inconsistent with their master plans
to first "expressly recognize the inconsistency." 332 N.J. Super. at 229. Neither
case concluded N.J.S.A. 40:55D-62 requires municipalities to give "detailed
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reasons" for adopting inconsistent zoning ordinances, and the trial court did not
err in concluding the Township satisfied N.J.S.A. 40:55D-62 in adopting the
IMF-C Ordinance.
Under the third prong of Riggs, 109 N.J. at 611–12, plaintiffs did not claim
the IMF-C Ordinance did not "comport with constitutional constraints on the
zoning power, including those pertaining to due process . . . equal protection
. . . and the prohibition against confiscation." Rather, plaintiffs incorrectly rely
on Mt. Laurel II for the proposition that the IMF-C Ordinance violates
"constitutionally mandated planning strictures." Plaintiffs discuss the Court's
dicta on sound planning at length and highlight the following excerpt: "The
Constitution of the State of New Jersey does not require bad planning. It does
not require suburban spread. It does not require rural municipalities to
encourage large scale housing developments." 92 N.J. at 238.
Mt. Laurel II's dicta does not provide a cogent argument for why the IMF-
C Ordinance is invalid. Certainly, the Court has said, "[t]he Constitution of the
State of New Jersey does not require bad planning." Ibid. But plaintiffs still
bear the burden of overcoming the IMF-C Ordinance's presumption of validity
by a showing of clear and convincing evidence. Grabowsky, 221 N.J. at 551;
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Cona, 456 N.J. Super. at 215; Riggs, 109 N.J. at 611. It is not enough to call the
IMF-C Ordinance "bad planning."
Mt. Laurel II addressed issues such as which municipalities are subject to
the constitutional obligation to provide affordable housing, 92 N.J. at 239–40;
whether inclusionary devices are constitutional, id. at 271; why a municipality
may deny a builder's project "clearly contrary to sound land use planni ng," id.at 279–80; and how "low[-]density limitations" may violate the Mt. Laurel
doctrine, id. at 314–15. Here, the issue of whether the Township has a Mt.
Laurel obligation has been litigated. The court approved the settlement
establishing the Township's prospective affordable housing needs. There has
been no appeal of that final judgment. Therefore, the trial court did not err in
not finding a constitutional violation under the Mt. Laurel doctrine.
Finally, under the fourth prong of Riggs, 109 N.J. at 612, plaintiffs' claims
alleging inadequate public notice were dismissed, and plaintiffs do not appeal
this issue. Therefore, the court did not err in not addressing this issue.
Plaintiffs' remaining arguments also lack merit. Plaintiffs argue the
Global Settlement Agreement and the rezoning of the Deer Valley property may
have been tainted by an improper real estate transaction. Plaintiffs did not raise
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this issue before the trial judge. This court need not consider it for the first time
on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
We reject plaintiffs' argument that the trial court erred in finding the
Township satisfied the MLUL's requirements for adopting a zoning ordinance
inconsistent with its master plan. The MLUL's plain text and this court do not
require a municipality to provide "detailed reasons" why it adopted a zoning
ordinance inconsistent with its master plan.
Finally, we reject plaintiffs' argument that the court erred in not making
findings and conclusions on the basis of Mt. Laurel II. We conclude the court's
factual and credibility findings and conclusions of law were sound. To the
extent we have not addressed plaintiffs' remaining arguments, we are satisfied
they are without sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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