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Mountain Hill, LLC v. Middletown Township

A-6362-01T3 (N.J. Super. App. Div. 2004) (Unpublished)

ZONING; MLUL; FLOOR AREA RATIO—A municipality is entitled to adopt a reasonable floor area ratio definition and is not required to use the definition found in the MLUL.

A developer challenged the validity of a 2001 zoning ordinance that amended a prior 1994 ordinance. It had relied on the amended ordinance when it filed for approvals for a planned development. A civil association also challenged the validity of the 2001 zoning ordinance and the validity of the prior ordinance. The Court invalidated the 2001 ordinance because it was not passed by two-thirds of the members of the municipal committee as required. The civic association’s challenge of the 1994 ordinance was denied because it was not filed timely. Court Rule 4:69-6(a) requires a challenge to a municipal ordinance to be filed within forty-five days after the ordinance is passed. If a challenge is filed after the expiration of the forty-five day period, the court can only enlarge the time period in the interest of justice. Typical situations where a court may enlarge the time involve constitutional questions and important public interests. The civic organization argued that the 1994 ordinance, which created a planned development zone, impermissibly altered and limited the calculation of the “floor area ratio” set forth in the Municipal Land Use Law (MLUL). It argued that the area affected by the 1994 ordinance was a substantial piece of property, representing a significant portion of the remaining undeveloped land in the municipality. It also argued that when the developer sought approvals, there was significant public interest and debate. Therefore, it claimed that the 1994 ordinance was of sufficient public interest to waive the forty-five day rule. The Court disagreed, finding that there was no significant public interest in the ordinance. Instead, the public interest appeared to involve the developer’s application to develop property based on that ordinance, seven years after it passed. It also noted that the civic organization failed to explain why it waited seven years to challenge the ordinance. The Court also rejected the civic organization’s claim that the 1994 ordinance impermissibly altered the floor area ratio set forth in the MLUL. The MLUL defines the “floor area ratio” as the sum of the area of all floors and buildings compared to the total area of the site. The ordinance defined “floor area ratio” by dividing the gross floor area by the lot area. The Court noted that, in an unrelated case, the New Jersey Supreme Court found that “the MLUL does not preclude a municipality from adopting a zoning ordinance that defines terms differently from the definitions in the MLUL.” A municipality is permitted to adopt reasonable ratios to regulate the intensity of land use and is not required to use the precise MLUL definition.

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