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Toll Brothers, Inc. v. Township of West Windsor

97-2365 (N.J. Super. Law Div. Mercer Cty. 1997) (Unpublished)

MUNICIPALITIES; ZONING—A timed growth ordinance was successfully challenged as not being authorized by the Municipal Land Use Law and violating the prohibition against moratoria of greater than six months. The 45 day period in which a zoning ordinance may be challenged begins when the party is adversely affected; in this case, it began when the developer signed its contract to purchase the affected property.

A township adopted a timed growth ordinance to manage the booming population growth in its town. A developer claimed the ordinance was not authorized by any language in the Municipal Land Use Law (“MLUL”). New Jersey courts have held that municipal zoning ordinances must find enabling authority in the MLUL or they will be voided as ultra vires. The developer also claimed the ordinance was contrary to N.J.S.A. 40:55D-90 which provides that, “No moratoria on applications for development or interim zoning ordinances shall be permitted except…where the municipality demonstrates…a clear, imminent danger to the health of the inhabitants of the municipality, and in no case shall the moratorium or interim ordinance exceed a six month term.” The burden is on the party attacking the ordinance, and the developer argued there was no public danger and no time limit on the ordinance. The municipality defended the validity of its ordinance and also claimed that the developer’s law suit was out of time.

First, the Law Division held that the 45 day limit for challenging a zoning ordinance does not begin immediately after a timed growth ordinance becomes effective. Rather, the 45 day period starts upon accrual of a party’s right to review, hearing or relief. The Court found that since the developer filed its suit within 45 days of the signing of its contract to purchase the property affected by the ordinance, the action was not time barred even though it was filed more than 2 years after the ordinance became effective. The Court further ruled that challenges to municipal ordinances are maintainable as declaratory judgment actions at any time, and courts have the discretion to extend the period of time when the constitutionality of an ordinance is challenged, if required in the interest of justice. The Law Division concluded that the ordinance was not authorized by the MLUL and therefore ultra vires, even to opining that the ordinance was in direct conflict with the MLUL since the MLUL. The Law Division also agreed with the developer that the ordinance was a de facto moratorium in violation of N.J.S.A. 40:55D-90 because the moratorium it granted was to be effective past the six month limit.


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