Skip to main content



Hartz Mountain Industries v. The Planning Board of the Village of Ridgefield Park

A-80-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING—An appellate court reverses a lower court, item by item, on the lower court’s rejection of planning board approvals granted to a office park developer.

A corporation proposed to develop a high-rise office park on property that the municipality had repeatedly identified as ripe for redevelopment. The land was the largest tract of undeveloped and under-developed land in the municipality. The local planning board granted preliminary major site plan approval for the entire project. It also granted final site plan approval for Phase I. Phase I included the construction of an office tower, a parking structure, and all of the off-site transportation infrastructures. A condition of the planning board’s approval was that the corporation had to acquire certain adjacent property which blocked access to the major roadway. The owner of that property had resisted negotiations, and brought in lieu of prerogative writs actions to set aside the approvals. Furthermore, there was opposition to the municipality’s new enabling ordinance. The ordinance extended the boundaries of the office park’s zone to incorporate lands owned by the Turnpike Authority. This had the potential to eliminate a building height issue for the development.

The lower court set aside the site plan approvals and vacated the ordinance. It held the corporation did not have standing to pursue its development applications because it was not a “developer” as defined by the Municipal Land Use Law (MLUL). The lower court concluded that the corporation was not a developer because it did not own all of the land needed for the development, specifically the property owned by the adjacent property owner. It further held that there was no evidence of a public/private partnership whereby the corporation’s project would become feasible as a result of a governmental exercise of eminent domain.

On appeal, the Appellate Division disagreed, concluding that the corporation met the definition for a developer. N.J.S.A. 40:55D-3 defines a “developer” as the owner of a lot or of any land proposed to be included in a proposed development. Thus, the Court held that the lower court was incorrect in defining a “developer” as an applicant who owns all of the land to be used in a development. Even though a local board can not grant approval of a plan where fundamental elements are left unresolved before preliminary approval, the actions of the board in this case were acceptable because it had only approved the plan upon the acquisition of the necessary element, namely the acquisition of part of the adjacent property. In addition, the Court found that condemnation to facilitate the project was not inconceivable. N.J.S.A. 40A:12A-8 permits a municipality to acquire property in order to effectuate a redevelopment plan. In this case, the municipality had previously commented approvingly on the proposed development, finding it to be in the public interest and consistent with its own master plan. Therefore, the Court held that the board properly conditionally approved the proposal.

The lower court had also found that the corporation’s notice of its application was inadequate because it did not sufficiently alert the public as to the extensive roadway infrastructure that was required. The Appellate Division disagreed. The corporation had given the location of the development and a detailed description of the proposed construction. Its notice specifically referred to “road access, level of service, [and] road design variances.” The Court concluded that given the proposed large-scale development, “even a causal reader would understand the nature of the matter to be considered,” including that a system of internal roadways would have to be constructed with access to the adjacent existing roadway structures.

Additionally, the lower court had concluded that the board’s post-application, pre-hearing discussions regarding the proposed development were so extensive as to violate the MLUL, warranting a reversal of the board’s approvals. Again, the Appellate Division disagreed, holding that the MLUL anticipates that a planning board may consider a proposed development before a formal development application has been filed. Specifically, N.J.S.A. 40:55D-10.1 provides that, at the request of a developer, a planning board may grant an informal review of a concept plan for a development for which the developer intends to prepare and submit an application for development. Here, the Court held that the MLUL also allows a planning board to discuss a development application after the application has been filed but before a formal hearing is commenced. N.J.S.A. 40:55D-10.3 states that a planning board may review a development application for completeness and may communicate with a developer regarding the adequacy of its application. In this case, during its pre-hearing discussions, the planning board merely noted that information was missing from the application. Furthermore, the board simply approved the hiring of consultants needed to analyze the application. Finally, over the course of several pre-hearing discussions, the board continued to note deficiencies in the application, but the Court held that any discussions of the details of the application were very brief and no more extensive than the review which occurred before the application was filed.

Interpreting the municipality’s zoning ordinance that was applicable at the time of the application, the planning board concluded that the corporation did not need a height variance. The lower court disagreed, holding that a height variance was needed and that it could only have been obtained from the board of adjustment. Therefore, the lower court concluded that the planning board did not have jurisdiction to hear the application. The Appellate Division, disagreeing again, held that no variance was needed pursuant to the ordinance in effect at the time of the application. Specifically, that ordinance provided “[t]here shall be no maximum height [requirement] except as regulated by area and yard requirements.” The Court interpreted this language in context with the balance of the ordinance to mean that it was primarily concerned with area, yard, and bulk regulations and only secondarily with building height. The ordinance had no specific height limitation. Rather, it allowed for buildings of any height based on adjusting setback and building coverage requirements. Thus, the only variances the corporation needed were for setback and lot coverage problems, and those could be sought through the planning board.

The lower court also invalidated the new zoning ordinance, finding that the planning board’s master plan did not contain any specific planning recommendations for the zone within which the proposed development was located. Once again, the Appellate Division disagreed, holding that the ordinance was enacted pursuant to the municipality’s historical planning concept for the area. To be valid, a zoning ordinance must be “substantially consistent” with the local master plan. According to the Appellate Division, local planning bodies cannot identify every possible compatible and incompatible use in a master plan. Furthermore, some inconsistency between a master plan and a zoning ordinance is permitted. Here, according to the Court, the master plan addressed the zone and the corporation’s land in particular. The plan identified that land as the largest tract of undeveloped and underdeveloped land in the municipality and attributed this lack of development to the lack of adequate traffic access to the property and also to certain wetlands constraints. The plan further noted that the land had been declared an area in need of redevelopment, recommended that a new traffic access plan be developed, and noted that the previous master plan had suggested various uses for the site.

The Court could find no substantial inconsistency between the ordinance in question and the master plan. The current master plan’s recommendations for the zone were left vague and essentially unchanged from the recommendations made in the previous master plan. Thus, the Court held that it was not as though, through the ordinance, the governing body altered established expectations regarding the nature of the zone. The zone was an office park zone, and remained one. Even the lower court had found that the changes to the zone regulations “did not have the capacity to materially alter the essential character of the zone.”

Additionally, the lower court held the ordinance to be invalid because the governing body’s inconsistency statement was inadequate. In its view, because the master plan had no land use recommendations for the zone, the governing body was prevented from issuing an adequate inconsistency statement. The Appellate Division disagreed. N.J.S.A. 40:55D-26(a), and N.J.S.A. 40:55D-64 allow a municipal governing body to refer a proposed development regulation or zoning ordinance to the local planning board for review and for a report back to them identifying any inconsistencies between a proposed development regulation and the master plan. Here, prior to its adoption, the municipality referred the ordinance to the planning board for review. The planning board identified inconsistencies between the ordinance and the master plan and approved the ordinance despite the inconsistencies. The planning board and the municipality each concluded that the ordinance did not contain any substantial inconsistencies with the master plan.

Finally, the lower court invalidated the ordinance because personal notice of the pending adoption of the ordinance, as required by N.J.S.A. 40:55D-62.1, was not given. The Appellate Division concluded that such notice was not required. It noted that in defining the notice required for zoning changes, the legislature intended to distinguish between an isolated zoning change (requiring notice) and a broad-based review of a municipality’s entire zoning scheme (not requiring notice). Here, the ordinance altered the boundaries of the zone by extending one of its boundaries. For such a boundary change, personal notice would normally have been required. However, notice was not required in this case because the change was recommended in the planning board’s periodic general reexamination of the master plan made in accordance with N.J.S.A. 40:55D-89. Specifically, in issuing public notice of the ordinance, the municipality announced that the ordinance was being adopted as a result of a reexamination of the master plan by the planning board and the municipality.

An opponent to the approval argued that the boundary change could not be viewed as “recommended in a periodic general reexamination” because neither the recent reexamination report nor the master plan specifically recommended that the zoning boundary be changed. Therefore, it argued that the documents could not serve as a public notice, replacing the required personal notice. The Appellate Division disagreed, finding that the reexamination report stated, as a general objective, the encouragement of commercial redevelopment of the area around the proposed development. The report specifically discussed the need to improve traffic access in the area and the possibility of using the Turnpike Authority’s lands. The Court held that the references to the Turnpike Authority’s lands in the context of the redevelopment plan were sufficient to warrant referring to the boundary changes in the ordinance as “recommended in a periodic general reexamination of the master plan by the zoning board.” That is why the Court held that personal notice of the ordinance was not required.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com