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Campbell v. Borough of North Plainfield

404 N.J. Super. 351, 961 A.2d 770 (App. Div. 2008)

ZONING; ORDINANCES — If a proper protest is made at a meeting where a municipality’s council is voting to adopt a change to a zoning ordinance, a two-thirds vote is required and that is measured against the total number of council seats, not, in the case of vacancy, against the total number of sitting council members.

A municipality undertook a reexamination of its land use master plan, resulting in the adoption of a report which recommended the development of senior housing. The plan identified a large land parcel that was formally the site of a convent as the perfect location for a new age restricted zone. The municipality’s council moved to pass an ordinance designating the new zone; the only parcel affected was the convent site. Property owners within 200 feet of the convent parcel were served with notice and a copy of the ordinance. Prior to the public hearing and vote on the ordinance, many of these property owners filed a valid protest opposing the ordinance, and others spoke at the hearing in opposition to the ordinance. There was one vacancy on the council at that time. The vote of the other six council members was four in favor, two against. Although the council president expressed the view that the ordinance failed to carry a necessary two-thirds vote, the mayor later signed the ordinance, and the municipality took the position that it was validly adopted. A subsequent ordinance addressed the density and setbacks for the new zone. The ordinance was by council members as an amendment to the original ordinance that created the age restricted zone. It passed after similar valid protest and opposition by a council vote of six in favor and none opposed.

Suits were filed by neighbors of the affected parcel challenging both ordinances. The suits were consolidated. The municipality argued that the protest rule of the Municipal Land Use Law (MLUL) did not apply and that the vacancy on the council did not count for purposes of a required two-thirds vote to overcome a valid protest. The lower court ruled in favor of the protestors and invalidated the original ordinance.

On appeal, the Appellate Division affirmed. The Court first analyzed the validity of the second adopted ordinance. The municipality argued that the second ordinance constituted a complete reenactment and readoption of the original ordinance, and that the time of decision rule, because the second ordinance was passed unanimously, precluded any challenge to the original ordinance. The Court was not persuaded by this argument. It held that the time of decision rule, which permits municipal changes to a zoning ordinance at any time and holds that a reviewing court will apply the law in effect at the time of its decision, and not the law that was in effect when the issues were originally presented, only pertains to substantial changes in the law and their applicability to ongoing disputes. The Court said the time of decision rule could not apply as a defense to the first ordinance’s challenge because that challenge was procedural rather than substantive - whether the council validly passed the ordinance over protest. The Court followed that the second ordinance was merely an amendment of the first, based upon the language of the published and personally communicated notices pertaining to that ordinance and the comments of council members, rather than being a complete reenactment which would have served as a substantive act to which the time of decision rule could apply.

The Court additionally held that although the municipality was not required to give personal notice of the first ordinance to the neighboring property owners of the parcel at issue, the neighbors retained their fixed right under the MLUL to protest any proposed zoning change and require an enhanced majority for the ordinance’s approval. It continued that the vacancy on the council did not reduce the membership for purposes of the required enhanced majority. Under the MLUL, the Court concluded that the council’s vote of four to two, when the council’s full membership was seven, failed to satisfy the two-thirds majority “of all its members” required when a valid protest of the proposed ordinance has occurred.

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