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BOK v. Township of Wall

A-5664-01T2 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; ORDINANCES; VALIDITY—If there are conceivable circumstances under which an adopted zoning ordinance will advance the public welfare, a court will uphold the ordinance.

The owner of a thirty-four acre plot of land entered into a contract to sell the property. The sale was contingent upon the buyer obtaining all final, unappealable and unconditional approvals needed for construction of at least 250,000 square feet of retail space on the site. The buyer filed a preliminary site plan application detailing the construction of three retail buildings totaling 177,900 square feet, parking areas, and a utility infrastructure. Because the relevant zoning provisions permitted the proposed use, no variance or waiver was sought.

There was a problem with the site’s proximity to a local highway. The planning board was concerned about too much retail development because it might lead to traffic congestion. In addition, the board was also concerned with the highway’s appearance, and wanted to ensure that the municipality could retain aesthetic control. To deal with these concerns, the planning board approved a proposed amendment to the land use element of the municipality’s master plan. The amendment addressed the board’s concerns by proposing a limitation on the amount of retail use serviced by the highway. In support of this proposal, an ordinance was adopted, removing the owner’s land from the Highway Business zone, and placing it in the Office Park zone. Then, the buyer’s application was rejected.

In response, the buyer decided to build a movie complex. This was still a permitted use. The municipality then adopted a zoning amendment making movie theaters a conditional use in the Highway Business zone, and barring them in the Office Park zone. The buyer sued. At trial, a licensed professional planner testified that the two zoning ordinances were not a reasonable exercise of the municipality’s zoning power. The planner also opined that the board’s conclusion that retail development along the highway would result in congestion was unsubstantiated, and that the municipality chose not to review alternatives. He also voiced concern that the new zoning ordinances abruptly removed long-standing permitted uses from the owner’s site. The buyer’s traffic expert testified that there was no justification, based on traffic engineering principles, for the zoning change, and that the municipality had failed to conduct traffic counts to determine the actual level of traffic on the highway. The municipality and the buyer then presented conflicting information about the differences between office and retail traffic, and their respective effects on weekend, rush hour, and seasonal traffic.

The Law Division rejected the buyer’s attack on the ordinances, finding them both to be in accordance with N.J.S.A. 40:55D-62(a). The lower court agreed with the buyer’s assertion that the municipality undertook a concerted effort to frustrate the proposed retail development of its site. Nonetheless, the lower court concluded that this did not require invalidation of the ordinances. It found the traffic concerns were confirmed by the Department of Transportation’s Needs Assessment Survey, which predicted a dramatic increase in traffic in upcoming years. Furthermore, the lower court believed that an office building complex would cause less traffic and would have less impact than a retail or movie theater use. According to the lower court, a legislative body is permitted to amend its ordinances in compliance with its responsibilities and applicable law, and a landowner cannot rely on there being no changes to existing zoning regulations.

On appeal, the buyer first contended that the municipality’s adoption of the amendments was arbitrary, unreasonable, and capricious because it was not based upon an objective analysis. The Appellate Division disagreed. An ordinance need only advance any one of the general purposes of Municipal Land Use Law (MLUL). One such purpose is to encourage the location and design of transportation routes to promote the free flow of traffic while discouraging facilities resulting in congestion. Also, ordinances may be drawn with reasonable consideration to the character of each district and its peculiar suitability for particular uses and to encourage the most appropriate use of the land. N.J.S.A. 40:55D-62a.

Courts should not question the wisdom of a zoning ordinance. The question for a court is whether there are conceivable circumstances under which the adopted ordinance will advance the general welfare. Just because there is a difference of opinion as to how an ordinance will work, does not justify a declaration of invalidity. If the validity of an ordinance is at least debatable, then it must be upheld. And, the party attacking an ordinance has the burden of overcoming this presumption of validity.

Prior case law teaches that a municipality can amend a zoning ordinance even if the amendment is a direct response to a site plan application, and even if the proposed use was a permitted use under the prior ordinance. But, for a zoning ordinance to be valid, it must advance one of the fifteen general purposes identified in N.J.S.A. 40:55D-2.

After reviewing the record below, the Appellate Division held that there was sufficient evidence supporting the finding that large retail and movie theater facilities would not promote the free flow of traffic but would instead result in congestion, contrary to the goals of MLUL. It was irrelevant that the buyer had provided substantial conflicting information, because it was not enough to overcome the burden of a presumption of validity.

The buyer also contended that the municipality engaged in prohibited “reverse spot zoning,” which is the use of a municipality’s zoning power to benefit particular private interests rather than the collective interests of the community. Reverse spot zoning arbitrarily singles out a particular parcel of land for different, less favorable, more restrictive treatment than neighboring parcels. An ordinance enacted in accordance with a comprehensive zoning plan, however, is not spot zoning. And once again, the burden of proving spot zoning rests with the party challenging the ordinance.

The buyer alleged that reverse spot zoning was evidenced by the municipality adopting two zoning ordinances rejecting certain uses for its property while allowing existing retail uses on various nearby properties. The Court pointed out, however, that the buyer was proposing a substantially larger retail use than those nearby.

The Court also rejected the buyer’s claim that the adoption of two consecutive amendments called into question the validity of those amendments. The Court believed that the second amendment was an effort by the municipality to refine the goals of the first amendment. The fact that the inconsistency was brought to the attention of the board by the buyer’s second application did not invalidate the amendment. The amendment was consistent with the MLUL. It has long been the law that a municipality can change its zoning ordinance during a pending site plan application. This is embodied in the “time of decision rule,” which states that until an application is approved, a legislative body may amend its ordinance in compliance with its responsibility and the applicable law. Furthermore, in this case, the ordinances were adopted before the buyer’s applications were acted upon.

Finally, the buyer contended that the lower court improperly based its decision on visits to, and observations of, the subject area, demonstrating that the lower court relied upon its own inspection rather than the evidence in the record. Upon reviewing the trial transcripts, the Appellate Division concluded that although it was obvious that the lower court was familiar with the area, it did not feel that the lower court based its determination on an off-the-record personal inspection, but instead based it on substantial, credible evidence. Furthermore, any slight reliance was not prejudicial to the buyer’s rights considered in light of the entire record.


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