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Chrinko v. South Brunswick Township Planning Board

Decided: January 4, 1963.


Furman, J.s.c.


This prerogative writ action contests the validity of two ordinances of South Brunswick Township in Middlesex County permitting cluster or open space zoning. By their terms a subdivision developer may reduce minimum lot sizes by 20% or 30% and minimum frontages by 10% or 20% upon his concurrently deeding 20% or 30% of the subdivided tract for parks, school sites and other public purposes, with the approval of the planning board.

South Brunswick Township is in the western section of Middlesex County abutting Somerset and Mercer Counties. Its land area is over 41 square miles. The New Jersey Turnpike, three main arterial highways and the main line of the Pennsylvania Railroad bisect the township. Once predominantly agricultural, with settled communities at Kingston, Dayton, Monmouth Junction and Deans, South Brunswick has experienced an estimated doubling of its population in the three years between 1957 and 1960 and an onrush of new

industry and commercial establishments, particularly along the highways.

Downtown New York and downtown Philadelphia are within a radius of 35 miles, drawn from South Brunswick Township. The urban sprawl from the New York metropolitan area reaches within a few miles of the township on the north and east. Residential developments for the wage earners of Philadelphia, Trenton and vicinity are pushing towards South Brunswick from the south and west. Kendall Park, which was developed recently for one-family housing on lots approximating 13,500 square feet, now holds about 40% of the population of South Brunswick Township in an area slightly over one square mile along the northern boundary.

A similar project, Brunswick Acres, is proposed for a 235-acre tract in the Residential 20 Zone in the northeast corner of the township. This development is intertwined with the legal and factual issues before the court. The plaintiffs contend that the cluster or open space ordinances were enacted for the special benefit of the owner, Yenom Corporation. The defendants' position is that they responded with reasonable legislation, general in effect, to the problem of large subdivision developments without land areas available for schools, recreation areas and green spaces.

Facing multiple housing developments and a population upsurge, the South Brunswick Planning Board authorized a master plan report from a firm of planning consultants in 1960. The master plan report, which recommended balanced growth, was submitted in late 1961. No master plan has been adopted. On the subject of cluster or open space zoning, the master plan report suggested an optional system parallel to that enacted in the zoning ordinances under attack here, but applicable only in zones with a minimum lot size of 45,000 square feet and allowing reductions of minimum lot sizes but not minimum frontages. The planning consultants label this recommended scheme "density zoning," stressing that no more homes can be built in a subdivision despite smaller size

lots, because the land thus saved must be deeded to the municipality.

The need for preserving woods and parklands in a natural state, as well as lands adequate for other public purposes, is widely recognized. The voters of this State approved by referendum in 1961 the expenditure of $60,000,000 for the acquisition of so-called "green acres" by the State or political subdivisions. L. 1961, c. 45, N.J.S.A. 13:8A-1 et seq. Technical Bulletin 42 of the Urban Land Institute, published in 1961, endorses density zoning, which it designates as organic zoning for planned residential developments. Other discussions of the various governmental techniques for acquiring or maintaining recreation and park areas are found in Krasnowiecki & Paul, "Preservation of Open Space in Metropolitan Areas," 110 U. Pa. L. Rev. 179 (1961); Comment, "Techniques for Preserving Open Spaces," 75 Harv. L. Rev. 1622 (1962); Comment, "Control of Urban Sprawl or Securing Open Space: Regulation by Condemnation or by Ordinance?" 50 Cal. L. Rev. 483 (1962).

The cluster or open space zoning ordinance of South Brunswick Township was adopted as No. 19-62, an amendment to the zoning ordinance of 1958. Its main pertinent provisions are as follows:

"Section 2. The purpose of this subsection is to provide a method of development of residential land which will nevertheless preserve desirable open spaces, school sites, recreation and park areas and lands for other public purposes.

Section 3. At the discretion of the Planning Board, a subdivider may be allowed to reduce the minimum lot size and dimension requirements in accordance with the provisions of this Ordinance, provided the following conditions are met:

(a) The resulting net lot density of the area to be subdivided shall be no greater than the net lot density of the said area without regard to the provisions of this Ordinance.

(b) All lands within the subdivision other than streets, building lots and private recreational areas shall be deeded to the Township for public purposes simultaneously with the granting of final subdivision approval.

(c) The lands to be deeded for public purposes shall be located, shaped and improved as required by the ...

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