Oakwood at Madison Corp. v. Mayor & Council of Madison Township

Nos. L-17781-69 P.W.; L-17149069 P.W. (N.J. Super. Ct. June 3, 1970)

A town may restrict large scale developments until it has a master plan developed for orderly growth and development. During the period that such large-scale developments are restricted, a land developer may not circumvent the development ordinance by selling individual lots and claiming that the purchasers of those lots were entitled to an exemption in the ordinance permitting single unit residential construction. The court may look through the scheme as a whole and see that it amounts to an artifice to avoid the ordinance. Moratorium ordinances halting development while master planning goes on are valid, and, given the complexity of comprehensive zoning, such moratoria may be in effect for extended periods of time. [For opinion affirming this ruling, see 2 ELR 20670; for a related case, see 2 ELR 20670]

Counsel for Plaintiffs
Stanley L. Benn
Wilentz, Goldman & Spitzer
252 Madison Avenue
Perth Amboy, N.J. 08862

Arthur W. Burgess
Toolan, Romond & Burgess
214 Smith Street
Perth Amboy, N.J. 08862

Counsel for Defendants
Richard F. Plechner
351 Main Street
Metuchen, N.J. 08840

[2 ELR 20668]

Deegan, J.

The motions before this Court are for summary judgment by both plaintiffs, Oakwood at Madison Corp. and Rosenblum, wherein they request that defendant's Ordinance C-119 and its Amendments be declared inapplicable to their factual situation of merely selling vacant lots and also to require defendants to grant them major subdivision approval.

The factual backgrounds upon which plaintiffs' motions are based are uncontroverted as evidenced from the pleadings. Therefore, there is no material, factual dispute or issue which would bar the consideration of a motion for summary judgment under Rule 4:46-2.

On December 5, 1968 plaintiff Rosenblum submitted to the Planning Board of the Township of Madison (Board) an application for classification as a major subdivision in accordance with Article V, Section 1 (a) of the Land Subdivision Ordinance of the Township of Madison. On December 9, 1968 the Board refused to classify plaintiff's application on the grounds that it would violate Ordinance C-119. Plaintiff claims that he sought his subdivision only to sell individual vacant lots. After exhausting his administrative remedies, plaintiff Rosenblum appealed the refusal of the Board to the Superior Court of New Jersey. On June 11, 1969 the Honorable Norman Heine, Judge of the Superior Court of New Jersey, entered an Order in the aforesaid action, directing the Board to classify plaintiff's application as a major subdivision. The Board therefore gave approval to plaintiff's major subdivision on November 13, 1969.

However, when the Board submitted its favorable approval of plaintiff's subdivision to defendants, Mayor and Township Council (Council), they refused to approve the recommendation, basing their denial on the grounds that it would violate Ordinance C-119. The present suit resulted from this denial.

The following facts pertain to the second half of the present suit involving plaintiff Oakwood at Madison Corp. Plaintiff Oakwood is the owner of certain premises located in Madison Township, Middlesex County, New Jersey, which contain approximately 159 acres.

Oakwood made application to the Planning Board of the Township of Madison for preliminary major subdivision approval to divide the aforementioned premises into 244 lots, and complied with all the provisions of the Land Subdivision Ordinance of the Township.

On December 18, 1969 the Board gave tentative approval to Oakwood's subdivision. The Board then submitted its favorable approval to defendants, Mayor and Council of the Township of Madison. On December 29, 1969 the defendants refused to approve the recommendation submitted to them by the Board on the grounds that to do so would violate Ordinance C-119. The present action resulted from this refusal.

At this point the Court will take judicial notice of the fact that on July 30, 1969 the Honorable Samuel B. Convery, Judge of the Superior Court of New Jersey, rendered an opinion in the case of Verteree Corp. v. Township Committee of the Township of Madison, et. al, Docket No. L-13820-68, which dealt with substantially the same issue before this Court. In that opinion Judge Convery set the date of July 1, 1970 as a deadline for the adoption of the new zoning ordinance by the Township and stated: "If not adopted by that time, plaintiff may apply for an order entering summary judgment declaring the ordinance of Madison Township, establishing a residential building moratorium and limiting the number of lots which may receive major subdivision approval in any one year, invalid."

In September 1967 the Council adopted Ordinance C-119, establishing a moratorium on residential construction. The Ordinance provided:

[2 ELR 20669]

"1. No residential building unit of any kind shall be permitted to be approved by any governmental body or erected by any person in any zone or district designated in the Township of Madison zoning maps until such time as the presently existing zoning ordinance and zoning map can be revised and amended in accordance with a comprehensive plan."

This Ordinance was amended on October 21, 1968 by Ordinance C-138 so as to allow the erection of single dwelling. The Amendment provided in part:

"1. * * * provided, however, that the erection of a single dwelling for the purpose of occupancy by the individual owner or his family as a residence which does not require prior subdivision approval by the Planning Board, is not prohibited."

In construing Ordinance C-119 and its Amendment, the same rules of guidance are to be employed as those governing the interpretation of statutes, N.J.S.A. 1:1-1; Guill v. Mayor and Council of the City of Hoboken, 21 N.J. 574, 587 (1956). One of the most basic rules of interpretation is that the ordinance should be constructed in accordance with the legislative intent. Essex County Retail, etc. v. Newark, etc. Beverage Control, 77 N.J. Super. 70, 77 (App. Div. 1962); Brundage v. Randolph Township, 54 N.J. Super. 384, 396 (App. Div. 1959). "Ordinances are to receive a reasonable construction and application, to serve the apparent legislative purpose." Essex County Retail, Ibid. at 77.

In order to determine the intention of those who have instituted a statute or ordinance, the circumstances present in the community or municipality which concern this ordinance must be considered. To arrive at the circumstances which exist in Madison Township, this Court finds it instructive to look to the findings made by Judge Convery in his aforementional opinion. Judge Convery found that the defendant Township had shown the following:

"* * * [T]he Township of Madison is a municipality of approximately 42 square miles, 60% of which is undeveloped, containing 45,000 residents, which for the past 10 years has experienced a population explosion. In 1950 the number of residents was 7,000 and in 1960 the number was 22,000. There has been a population growth of 87.6% since 1960. It is one of the largest school districts in the State of New Jersey and is in the unfortunate position of having a severe lack of industry to balance its tax base. The testimony is that the Township not only has the school and industry problems but problems concerning health, welfare, sanitation, police and recreation.

* * *

The accompanying lack of industry and explosion in the school population has resulted in a very unfavorable tax rate situation. The latter will militate against the solution of the problem since it will tend to discourage industry from locating in the Township."

Another factor to indicate the purpose of this Ordinance is its preamble, which clearly sets forth the necessity for the providing of "planned orderly growth and development", and goes on to recite that the Ordinance is of a temporary nature pending a "comprehensive master plan study".

Considering the circumstances and the preamble together, there can be no doubt that the intent of the Council when it passed Ordinance C-119 and its Amendment was to restrict large scale development of residences so that a master plan could be developed for orderly growth and development to deal with the problems of the municipality.

Even though the plaintiffs in the present action contend that their intention is merely to develop vacant land into building lots, this Court must make a reasonable and logical extension of their plans to see if they conflict with the purpose of the Ordinance. If plaintiffs are allowed to develop vacant land into building lots, the reasonable, ensuing progression is that the individual lot owners will then apply for building permits under the Amendment to the moratorium Ordinance, which allows "a single dwelling for the purpose of occupancy by the individual owner or his family as a residence". The obvious purpose of the Amendment was to permit one who presently owned a lot to build a house on this lot for his own residence. The extension described above which will logically follow from plaintiffs' request will put the Township in exactly the same position it was in before Ordinance C-119 was passed and definitely circumvent its purpose.

With regard to moratorium or "stop-gap" ordinances, the law has been clearly established by our courts as to the setting in which these ordinances are to be interpreted and their requirements. Compana v. Clark Township, 82 N.J. Super. 392 (1964); Deal Gardens, Inc. v. Board of Trustees of Loch Arbor, 48 N.J. 492 (1967). In Compana, which involved such an ordinance, the Court stated:

"We can take judicial notice of the fact that it requires considerable time to prepare and put into effect a worthwhile and comprehensive zoning plan.

* * *

In the instant matter the 'temporary' ordinance has been in effect for more than two years. However, as has been seen, the mere passage of time alone is not the sole determining factor of the reasonableness or unreasonableness of the 'stop-gap' ordinance. We must also look to the progress of the study being made, its nearness to completion, and the prospects for passage of a new zoning ordinance, keeping in mind at the same time that such a comprehensive zoning plan requires considerable time for preparation and study.

While this court is fully aware that the rights of individual property owners must be protected, it also has a duty to the community as a whole not to thwart any reasonable effort to adjust land use to modern needs. This is most important in view of the tremendous growth of our municipalities, and the threat it poses to proper planning. In the instant case it would seem that the passage of 31 months, during which time an interim ordinance has been in effect, does not constitute an unreasonable period of time. It must be remembered that zoning today is a more complex problem than it was 30 years ago. What would require two years then could very possibly require a longer period of time today. Furthermore, this court is impressed with the 'good faith' attempt on the part of the township and its planning consultant to expedite the new master plan which, it is hoped, will ultimately result in the passage of a permanent zoning ordinance." 82 N.J. Super. at 395, 397.

The situation in the case at bar is that Madison Township is preparing a comprehensive plan. This Court is satisfied that a good faith attempt is being made to expedite the new plan and that the Township should be given a reasonable time to institute this plan so that present problems may be alleviated to some extent.

As to the apparent discrepancy which exists between the decisions of Judge Heine and Judge Convery, this Court feels that Judge Heine did not consider the circumstances prevalent in Madison Township and the intention and purpose behind the Ordinance, because this issue was not before him. Judge Heine merely dealt with the Ordinance in a purely procedural context, stating that the Ordinance did not block further proceedings. However, the inarticulate drawing of an ordinance should not be so great a burden on the municipality so as to negate the underlying purpose and intent of the ordinance.

The decision by Judge Convery encompassed the legislative purpose, which is most important in the "stop-gap" or moratorium ordinance. It is this Court's opinion that if Judge Heine had had before him the facts and statistics of the prevailing circumstances in Madison Township, his decision would have circumvented the procedural administrative issue under Ordinance C-119 and dealt with the substantive intent behind the Ordinance.

Therefore, this Court finds that Ordinance C-119 and its Amendments are applicable to plaintiffs' cases, and their motions for summary judgment are denied. This decision does not vitiate the July 1, 1970 deadline for the adoption of the new zoning ordinance as established by Judge Convery.

[2 ELR 20670]

An appropriate Order consistent with this letter opinion will be submitted by Mr. Plechner within ten days, pursuant to Rule 4:42-1.