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Willoughby v. Planning Board of the Township of Deptford

326 N.J. Super. 158, 740 A.2d 1097 (App. Div. 1999)

ZONING; REZONING; “SUBSTANTIALLY CONSISTENT”—A re-zoning can not substantially or materially undermine or distort the basic provisions of a Master Plan and still be “substantially consistent” with that Plan.

A property owner sought to develop a tract of land as a retail shopping center. At the time, the tract was zoned as an “Office Campus,” which did not permit retailing. Therefore, the owner requested a zoning change. The municipality’s planning board voted unanimously to recommend to the governing body that the tract be rezoned. It then adopted a resolution memorializing its recommendation. The governing body then discussed and adopted a rezoning ordinance. Both the board and the governing body explained in detail their reasons for the rezoning. Both found the rezoning to be consistent with the municipality’s master plan. Neighboring residential property owners objected to both the rezoning and the manner in which it had been accomplished. Specifically, they testified that use of the tract for retailing would be contrary to the municipality’s master plan. The history of the adoption of the master plan showed that retailing had been considered and rejected as a use of the land in question. Despite this evidence, the lower court found that the planning board and the municipality’s governing board had appropriately concluded that the rezoning was substantially consistent with the municipality’s master plan. The Appellate Division, reviewing the record before the lower court, held to the contrary. Although it recognized that “the concept of ‛substantially consistent’ permits some inconsistency, “a rezoning cannot “substantially or materially undermine or distort the basic provisions and objectives of the Master Plan,” and still be considered “substantially consistent.” While acknowledging the principle that “the Board’s determination of consistency is entitled to deference and great weight,” the Appellate Division found that the zoning amendment conflicted with the planning board’s original rejection of retail zoning for this particular tract and also held that the rezoning conflicted with the municipality’s adoption of Office Campus zoning to protect neighboring residential property.

Unfortunately for the residential property owners, inconsistency between the zoning amendment and the master plan is not fatal to a zoning amendment. “It merely triggers two procedural requirements: a majority vote of the full authorized membership of the governing body and a statement of reasons.” The law does not require amendment of the master plan before an inconsistency ordinance is adopted. Reviewing the record, the Court found that four of the six members present at the meeting voted in favor of the amendment. Because four affirmative votes would have been a majority of the seven member board, the voting requirement was met. The law also requires that the governing body’s reasons for deviating from the master plan be expressed in its resolution and be recorded in its minutes. Here, although the governing body deemed the amendment to be a deviation from the master plan, a lengthy preamble to the proposed ordinance explained its reasons for changing the zoning. The law also requires a planning board to transmit a report to the governing body prior to adoption of the zoning ordinance amendment. That report is required to include “identification of any provisions in the proposed ... amendment which are inconsistent with the master plan and recommendations concerning these inconsistencies… .” Here, although the board did not identify any inconsistencies, its resolution incorporated the analysis of the municipality’s planning consultant and explained the reasons for changing the zoning for this tract. The Court raised one other issue sua sponte, i.e., whether the planning board’s resolution and the “Whereas” clauses in the ordinance effected compliance with the law despite the absence of a finding of inconsistency. This issue was remanded to the lower court for resolution.


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