This is an action in lieu of prerogative writs to determine the legality of a tentative approval granted by defendant township for a planned unit development granted under the provisions of an ordinance which was adopted under the legislative mandate of N.J.S.A. 40:55-54 et seq.
On or about April 10, 1970 the township committee by majority vote adopted certain findings of fact as required by N.J.S.A. 40:55-61 and adopted a resolution granting tentative approval to the developer.
The plaintiffs, who are taxpayers of defendant municipality, contend that the approval by the township was improperly granted for reasons which will be revealed in the course of these conclusions.
One facet of plaintiffs' contentions requiring primary consideration is the interpretation of a section of the statute, N.J.S.A. 40:55-57(a), which was adopted word for word in the ordinance. That section reads:
(a) Permitted uses. An ordinance adopted pursuant to this act shall set forth the uses permitted in a planned unit development, which uses may include and shall be limited to (1) dwelling units in detached, semidetached, attached, groups of attached or clustered or multistoried structures, or any combination thereof; and (2) any nonresidential use, to the extent such nonresidential use is designed and intended to serve the residents of the planned unit development, and such other uses as exist or may reasonably be expected to exist in the future, and (3) public and private educational facilities, and (4) industrial uses and buildings. [Emphasis added]
While it is conceded that the first portion of the underlined section ending with the word "development" limits the extent of the nonresidential uses, defendant owner-developer contends that the latter part of the underlined portion and other sections of the statute and ordinance would permit nonresidential uses to serve others outside the area of the planned unit.
Parenthetically, it should be noted that the political complexion of the township has changed since tentative approval was granted, and the township as now constituted does not oppose plaintiffs' cause of action.
Planned unit development had its genesis when the Urban Land Institute, which is an independent, nonprofit organization incorporated under the laws of the State of Illinois, initiated interest in this new land use philosophy. The statement of objectives of that organization indicates that its interests and activities cover the entire field of urban planning, growth and development. Among the principal purposes of the Institute are to study and to interpret trends in real property and to seek their orientation in the changing economic, social and civil needs of the country; to study principals and methods by which urban land can be developed and improved most efficiently, and to act as a clearing house
in this field for the dissemination of information in the form of case material, monographs and technical journals. Members of the Washington, D.C. -- based Institute include land developers, builders, architects, city planners, investors, planning and renewal agencies, financial institutions and others professionally interested in land uses. This organization issues technical bulletins. Urban Land Institute Technical Bulletin No. 52 first brought to light a model statute, the authors of which were two lawyers from the State of Illinois and Jan Krasnowiecki, a Professor of Law of the University of Pennsylvania. The model statute was to apply to those developments which were residential in nature, and was referred to as a Planned Unit Residential Development (PURD).
Our statute was not to be so limited. Its title removes the word "residential" and reads, "Municipal Planned Unit Development Act."
However, when our Legislature adopted the present statute it used the language in the model statute, viz., "any non-residential use, to the extent such non-residential use is designed and intended to serve the residents of the Planned Unit Development," and added to this the words, " and such other uses as exist or may reasonably be expected to exist in the future."
Planned unit developments have received favorable comments in law reviews in all parts of this country. The efforts of those seeking imaginative, flexible and creative results from planning, zoning, and land use control have recently been concentrated on planned unit developments. 35 Mo. L. Rev. 27 (1970); also see John D. Johnston, Jr., "Developments in Land Use Control," 45 Notre Dame Lawyer 399, 402 (1970); "Zoning: Planned Unit Development -- The Attorney and the City Planner," 22 Okla. L. Rev. 108 (1969); "Kentucky Planning and Land Use," 56 Ky. L.J. 598 (1968).
Many developers are disenchanted with our contemporary massive development of uniform housing types, be they of
the single-family or multi-family variety. Lloyd, "A Developer Looks at Planned Unit Development," (Symposium: Planned Unit Development), 114 U. of Pa. L. Rev. 3 (1965). More than 30 years ago Radburn, New Jersey showed how man and automobile both gain from a super block planned with central park, a peripheral collector street, and quiet, safe, residential lanes between. Hanke, "The FHA's View," U. of Pa. L. Rev., supra , at 15. The existing controls, it is often noted, tend to focus on the individual lot, a focus which makes sense where development occurs on an individual lot basis but which offers the residential developer nothing better than a "cookie cutter" with which to create. Krasnowiecki, "A Law Professor's View," Id. , at 47.
Earlier we referred to the fact that the ordinance under permitted uses was word for word with the statute, with the reference to the restricted quantum of nonresidential uses. In addition to the restriction set forth under permitted uses, the ordinance under paragraph 111, D-1, again states, "* * * commercial uses and buildings designed and intended to serve the residents of the planned community." (Emphasis added)
No provision in the developer's plan is made for industrial, although the area selected was zoned industrial, and N.J.S.A. 40:55-57(a)(4) provides for industrial use. The developer concedes that the development, as far as the commercial structures are concerned, far exceeds the need of those who will occupy the dwelling units to be constructed in the planned community. The developer contends that under a planned unit development (PUD) there are no ...