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Beazer Homes Corporation v. Township of East Greenwich

A-1962-06T1 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; ORDINANCES — If a municipality proposes an amendment in a zoning district, it must provide notice of the hearing and an opportunity for protest and if there is a protest, the ordinance must be passed by two-thirds of all members of the governing body of the municipality.

A developer filed an application seeking major subdivision approval of land it held under contract. Its application was consistent with the municipality’s zoning code at the time. The developer wished to subdivide the parcel into fifty-one lots with no variances necessary. The application was deemed complete four months later and the board had 120 days from then to make a decision. During this period, the municipality was in the process of revising its master zoning plan and zoning code. A month after the developer’s application was considered completed, the municipality adopted an ordinance which notably revised the zoning code as it applied to increasing lot size despite the protest petition of over eighty persons. The adoption was not conducted by a supermajority vote. Thereafter, the developer’s application was heard and denied because it failed to meet the new ordinance’s requirements.

The developer filed an action seeking a determination that the ordinance was invalid. The lower court found that the ordinance was invalid in its entirety by virtue of the signed petition and the lack of approval by a supermajority. The lower court remanded the application to the board for consideration based on the zoning in effect when the application was originally submitted. The board took a great deal of time to consider the application, and then took no final action because of a request for additional documentation. The municipality then passed a zoning ordinance that imposed a third round fair share affordable housing obligation. Five months later, the zoning board approved the developer’s application but now required the developer to conform to the new fair housing obligation. The developer moved to remove this condition, and the lower court ruled in its favor, finding that the board had repeatedly delayed hearing on the application. The municipality appealed, arguing that the lower court originally had held that the valid protest petition invalidated all of the earlier zoning ordinance, and not just the protested part that dealt with lot size.

The Appellate Division affirmed the lower court’s ruling, stating that the principle of severability does not apply unless and until a governing body follows the proper procedure in adopting ordinances. In the matter at hand, the municipality committee adopted an ordinance by a simple majority, despite a valid protest, thereby invalidating the entire ordinance.


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