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East Windsor Group, LLC v. Township Council of the Township of Toms River

A-6230-09T3 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING — Periodic reviews of a municipality’s master plan do not require personal notice to affected property owners or those within 200 feet of the boundaries of the affected district (in the case of a classification change) or those within 200 feet of the proposed new boundaries of a district (in the case of a district change).

Owners of a restaurant and hotel within a municipality challenged the municipality’s adoption of ordinances permitting hotels and restaurants within the municipality’s O-15 zone. A developer had applied for a use variance to build a hotel with a restaurant, as well as a separate freestanding restaurant, on property located within the O-15 zone. At that time, office uses and educational centers were permitted within the O-15 Zone, but hotels or freestanding restaurants were not. Before the zoning board acted on the application, the developer asked the municipality’s council and planning board to amend the zoning ordinance to permit hotels and detached restaurants within the zone. The board recommended it, and the council approved it. The municipality later adopted an ordinance amending its master plan.

Owners of existing restaurants and hotels challenged the validity of the amended ordinance, arguing that the ordinance was adopted without proper notice to affected property owners. They also argued that the re-examination of the master plan to include restaurants and hotels was flawed, and that it violated the New Jersey Municipal Land Use Law (MLUL). The municipality’s planner testified that, in his opinion, hotels and freestanding restaurants were compatible with, and supportive of, office uses and employment centers. He disagreed that the notice was defective or that his re-examination of the master plan was flawed. The lower court found that the ordinances were properly adopted and dismissed the case. The owners appealed, but the Appellate Division affirmed.

In doing so, the Court noted that ordinances are presumptively valid and the presumption is only overcome when a municipality’s actions are arbitrary, capricious or unreasonable. A court, however, may invalidate an ordinance if the municipality did not comply with the requirements of the MLUL. Here, the owners argued that the ordinance was invalid because the MLUL requires personal notice to all property owners within 200 feet of the boundaries of the district (in the case of a classification change) and within 200 feet of the proposed new boundaries of the district (in the case of a district change). They argued that the addition of restaurant and freestanding restaurants within the O-15 zone was a classification change that required personal notice to the property owners. Since there were no such notices, they argued that the ordinance was invalid. The lower court disagreed with the owners’ planner’s testimony that the change would substantially affect the character of the O-15 zone. Instead, the lower court agreed with the municipality’s planner that the addition of restaurants and hotel within the O-15 zone was not a dramatic change in the character of the zone, but was an addition of uses suitable to the zone. The Appellate Division agreed.

The lower court also rejected the owners’ claims that personal service was required to make changes to the master plan, noting that periodic reviews of a municipality’s master plan do not require personal notice. It also noted that, in addition to statutorily mandated reviews of a master plan, a municipality may make a periodic review of its master plan at any time. The lower court found that there was a rational basis for the amendment to the master plan and thus it rejected the owner’s argument that the municipality’s planner’s report failed to consider all sixteen components of a master plan.

In the appeal, the Appellate Division agreed with the lower court, holding that the MLUL only required consideration of the first two of its criteria, with the other fourteen to be considered only where appropriate. It noted that strict compliance with all of the requirements is not specifically required for permissive re-examinations, but even if it were required, non-compliance does not automatically invalidate an ordinance. Instead, it would create a rebuttable presumption that an ordinance was not reasonable. In this case, the municipal planner testified that adding restaurant and hotel uses to the O-15 zone was compatible with, and supportive of, the existing office uses and educational centers and did not dramatically change the zone’s boundaries or classifications. Therefore, even if the municipality had failed to comply with the MLUL’s requirements, the presumption of invalidity of the ordinance was rebutted by the testimony showing it to be reasonable.


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