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

Nos. A-2327-69; A-2106-69 (N.J. Super. Ct. App. Div. March 9, 1971)

Madison Township enacted an orinance forbidding approvals of any subdivision plans until zoning ordinances were revised in accordance with a comprehensive plan. A later, clarifying ordinance permitted "present owners of land . . . to build residences on their property for their own occupancy." The plaintiffs, owners of land which they proposed to subdivide into lots upon which buyers could construct their own homes, sought to compel classification of their property as a major subdivision. The court held that the court below was correct in denying the plaintiffs' motion for partial summary judgment. [For the opinion below, see 2 ELR 20668; 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 20670]

Per Curiam:

In these two consolidated actions plaintiffs Oakwood at Madison Corp. (Oakwood) and Ben Rosenblum appeal from a judgment in favor of defendant Mayor and Council of the Township of Madison denying plaintiffs' motions for partial summary judgment.

The facts are not in dispute. On September 18, 1967 Madison Township passed ordinance C-119 which provided, in part:

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. (Emphasis added.)

A subsequent amendment (ordinance C-151), enacted July 7, 1969, permitted 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." Its purpose was stated to be "to permit present owners of land in the Township of Madison to build residences on their property for their own occupancy, while continuing the restriction on large scale development of land for residences, which would require sub-division approval from the Planning Board," until the zoning ordinance could be revised and amended in accordance with a comprehensive plan. Madison Township finally enacted a new zoning ordinance on September 25, 1970. At oral argument we were advised that the new lot size restrictions would render the proposed lots nonconforming.

When Rosenblum applied to the Madison Township Planning Board for classification as a major subdivision on December 5, 1968, the Board refused to take action because it conceived that such action would be in violation of ordinance C-119. Rosenblum thereupon instituted an action in lieu of prerogative writs in the Law Division. On a motion for partial summary judgment the court entered an order directing the Planning Board to "classify" plaintiff's application, noting that "this might only be the first step in a geared plan of development, but the governing body and the courts are always available to deal with the situation in a proper case." Thereafter, on November 13, 1969, the Planning Board passed a resolution classifying Rosenblum's development of the major subdivision and giving it preliminary approval. When the major and council refused to approve it on the ground that it would be in violation of ordinance C-119 as amended, Rosenblum instituted his present action.

Oakwood also applied to the Planning Board for approval of the subdivision of itsplot into 244 lots. The Board approved on December 18, 1969 but defendant again refused to give its approval, also on the ground that the subdivision would be in violation of the moratorium ordinance. Oakwood thereupon instituted its present action. The actions were consolidated at pretrial.

Both plaintiffs moved for partial summary judgment holding that ordinance C-119 and its amendment were inapplicable to their factual situations. The motions were denied and the present appeal followed.

The sole issue involved is whether the moratorium ordinance as amended had application to subdivisions whose owners contemplated only the selling of the lots proposed to be created, rather than the construction of homes thereon. Substantially for the reasons set forth in the letter opinion of the court below, we hold that it did and that summary judgment was properly denied in each case.

Appellants urge that the moratorium ordinance is clear and unambiguous, hence does not permit the inquiry into the legislative intent which was made by the trial judge. We disagree. The ordinance was loosely drawn and, at the least, did not make clear what was intended by a "residential building unit" which would require prior approval "by any governmental body." The amendment makes it clear that one such governmental body was the Planning Board, thus justifying the court's conclusion that the ordinance was intended to apply to approval of plaintiffs' subdivisions.

We find no conflict between the order of Judge Heine in the first Rosenblum suit and result reached in the present action. He was dealing with the refusal of the Planning Board to act upon the subdivision and entered an order directing the Board to "classify" the application, while noting in his oral opinion — which antedated the amendment of July 1969 — that this "might only be the first step."

The judgment is accordingly affirmed.