Civil action in lieu of prerogative writ.
[47 NJSuper Page 309] This is an action in lieu of prerogative writ brought by the plaintiff landowner to set aside as unconstitutional and void an amendment to the township zoning ordinance adopted April 10, 1956, placing the plaintiff's property in a Class III Specialized Economic Development District thereby created and providing regulations and procedures concerning the use thereof, and to restrain the defendant township officials from taking any action pursuant to the amendment.
The amendment in question added to the original ordinance section 73.14(b), which created a zone classification called "Specialized Economic Development Districts" and provided for three classes of such districts -- I, II and III. Another part of the amendment added to section 73.25 of the original ordinance a subsection which delineated by metes and bounds the areas comprising the districts, there being one Class I District, two Class II Districts and one Class III District, which latter comprises about 440 acres and consisted only of the plaintiff's property. Since the amendment was adopted another area has been designated as a Class III District as well.
Section 73.14(b) first specifies the intent or purpose of these special districts in this language:
"* * * it is the intent to permit and encourage, in areas exhibiting a peculiar suitability therefor the establishment of a class of uses that will
1. Conserve the value of property;
2. Achieve optimum utilization of areas devoted to these uses by the substantial exclusion therefrom of such incongruous uses as residential, retail business, commercial, and the like;
3. Provide primary employment for the labor supply that is resident in the township and vicinity;
4. Yield a fair and reasonable share of municipal revenue, which is essential to provide adequate and efficient public facilities and governmental services that are required for the most beneficial use of land in the township and for the purpose of encouraging the most appropriate use of land throughout the township; such uses to be located in districts established in accordance with a comprehensive plan of land use that reflects the objectives of Part I of the Master Plan of the township and to be so conducted that there will be
(a) A harmonious relationship between such uses and uses in adjacent districts especially those that are residential or commercial in character;
(b) No detrimental effect of any such uses on other uses in the district;
(c) A satisfactory relation between the operation of such uses and access thereto with existing and prospective roads and highways of the township as set forth in Part II of the Master Plan of the township."
There then follows a little later on the uses permitted in the district in this language:
"The uses hereafter established in such districts shall be confined except as hereinafter set forth to the following, including combinations thereof, at an intensity not to exceed the limitations imposed by the performance standards hereinafter set forth in this section:
1. Offices for executive or administrative purposes;
2. Scientific or research laboratories, including incidental pilot plants in connection therewith;
3. Fabrication and assembly of products;
4. Processing of materials;
The amendment then specifically prohibits certain uses, including all residential uses, with minor exceptions related to the other uses of the property, and all retail business uses except those immediately incidental and appurtenant to a use permitted on a lot.
The permitted uses are further delineated as to their general nature of activity by prescribed performance standards then set forth in the amendment, which deal primarily with the principle that no use shall be established, maintained, or conducted so that the same will cause any dissemination of smoke, fumes, gas, dust, odor, noise and so forth, perceptible beyond the boundaries of the site; will discharge any waste material in any water course; create traffic on any street primarily serving residential districts that is incongruous with the traffic normal to such street; and create physical hazard by reason of fire, explosion, radiation, or similar cause, to property in the same or adjacent district.
The effect of these permitted and prohibitive uses is very definitely to limit the use of any property within one of these Specialized Economic Districts.
It should be noted, I think, that the term "lot" which is used throughout this amendment is defined as a duly approved subdivision or a leased parcel of land or a leased building.
The provisions of the section dealing with intensity of use are of importance. There are specific requirements with respect to each of the three classes as to minimum lot size; street frontage; yard dimensions, front, side, and rear;
maximum coverage of lot by all buildings, and maximum building height.
The differences in these requirements represent the only distinctions between the different classes of the district.
Except for minimum lot size and minimum street frontage, the differentiation in these requirements is in two groups, one applying to Classes I and II, and the other applying to Class III, with very minor variation.
The minimum lot size is three acres in Class I, five acres in Class II, ten acres in Class III, and the minimum street frontage in the same respective order is 200 feet, 300 feet, and 400 feet. Maximum coverage of the lot by buildings is 30% in the case of Class I and 20% in the case of Class II and III.
The amendment then goes on to specify other requirements to which any use must conform.
First, there must be an adequate belt of landscaping along the line of any lot contiguous to any residential district, regardless of any intervening street or highway, together with such fences or walls as may be required to provide appropriate screening of the operations on such lot from within such residential district. This applies only where a lot is contiguous to a residential district.
The second requirement is that the storage of all materials and equipment shall be in enclosed buildings, or otherwise appropriately screened by such walls, fencing and landscaping as may be required to screen such materials and equipment from outside the lot boundaries. This requirement applies whether or not the lot is contiguous to a residential district.
Thirdly, there must be adequate parking space for employees and visitors and loading space on each lot, based on the nature of the establishment and operations thereof.
Fourth, there is a limitation on signs to those necessary for directional and safety purposes and to identify the use, the latter to be designed as a part of an architectural design of the building or site plan.
Finally, building plans must be prepared by a New Jersey licensed architect or engineer.
Then there follows another subsection of the amendment which is of immediate importance in this case, entitled "Site Plan Approval," which specifies that no building shall be erected and no sanitary permit shall be issued in connection with any use in any of these districts unless a site plan for the lot shall be approved by the planning board. It provides that in acting on any site plan the planning board shall pass on:
"1. the layout of the site with respect to the arrangement and widths of driveways on the site and giving access thereto;
2. the amount of space required for automobile parking and for the loading and unloading of goods and materials, the location of such space, and access thereto;
3. the improvement of roadways, automobile parking areas, and loading and unloading areas, by grading, surfacing, and the installation of drainage structures; and the installation of water lines and facilities for sanitary sewerage; all to such extent and in such manner as the Planning Board may deem to be required by the circumstances of the particular case; provided, however, that final approval of the Planning Board shall not be given until water supply, drainage, sanitary and waste disposal facilities shall be approved by the Board of Health;
5. the appropriateness of the site plan and of the design of the buildings in relation to the physical characteristics of the site, the character of the neighborhood, and the most beneficial prospective use of land in the neighborhood."
The planning board may further be brought into the picture if the building inspector is in doubt, on any application for a building permit or certificate of occupancy, as to whether or not the proposed use will reasonably conform to the performance standards and the previously approved site plan, in which case he shall refer the matter to the planning board "which shall make a determination of the case."
It is further provided that the certificate of occupancy, once issued, may be revoked by the building inspector, or he may otherwise enforce the provisions in the event of
failure to comply with any of the conditions of the site plan approval or of the certificate of occupancy.
Other procedural sections of the amendment provide for applications to be made to the building inspector for the building permit and the certificate of occupancy, and it is upon him that the duty of enforcement is imposed.
By way of summary, the whole scheme for the proposed uses in one of these Specialized Economic Development Districts seems to call for:
1. An application for a building permit or certificate of occupancy to the building inspector, with a determination by the building inspector that the proposed use is within those permitted and that the proposed operation will conform to the performance standards, with the right in building ...