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Pascack Association Ltd. v. Mayor and Council of Township of Washington

Decided: February 1, 1974.


Gelman, J.s.c.


This matter is before the court on plaintiff's application for enforcement of a final judgment entered on January 12, 1973. A brief review of the procedural history of this litigation is essential to an understanding of the issues projected by this application.

These actions were commenced in lieu of prerogative writs by the owner (Pascack Association Ltd.) and contract purchaser (Waldy, Inc.), of lands in the Township of Washington, in which plaintiffs challenged the validity of the basic zoning ordinance of the township. In addition, Waldy appealed from the denial to it of a subsection (d) variance to permit construction of a garden apartment development on the subject property. The actions were consolidated and tried in October and November 1972.

An opinion was filed on December 20, 1972, holding: (1) an amendment to the Washington Township zoning ordinance establishing a two-acre minimum lot size for residential use of the subject property was invalid; (2) the existing zoning ordinance was invalid insofar as it failed to make any provision for multi-family or rental-type housing, and (3) the zoning board's denial of the variance for multi-family use was based on an erroneous view of the statutory requirements for a subsection (d) variance.

Judgment was entered in accordance with the opinion on January 12, 1973. It is important to note in the present context the following language in the court's opinion as to the township's obligations in connection with the judgment entered on January 12, 1973:

In holding the zoning ordinance under review invalid it must be noted that the court is not directing the municipality to rezone the plaintiffs' property for multi-family use. While the experts who testified on both sides were in general agreement that the subject premises would be suitable for this type of land use and development, it is not the province of the court to specify zoning densities or to exercise any other control at this juncture over the manner in which the township must meet its obligation to provide for multi-family or rental-type housing within its borders. Obviously, in view of the township's state of development, the range of choices available to it is limited, but these choices are properly a function of the legislative power which it must exercise with reasonable promptness and in accordance with the requirements of the statute.

Despite the foregoing statement in the opinion and a recital in the judgment that it was final, the township did not file a timely notice of appeal from the judgment declaring the zoning ordinance invalid.

On January 29, 1973 the township adopted an amendment to its zoning ordinance establishing a multi-family district consisting of approximately 34 acres located in the southeastern area of the township (Ordinance No. 73-1).*fn* Of the acreage included within the new MF district almost half (16.3 acres) is owned by the Young Men's Hebrew Association which has announced plans to utilize its property for nonresidential purposes; 6.5 acres are owned by the township, and 4 acres are owned by an organization known as the Columbian Club. Within the MF district, there is one other sizeable parcel (approximately five acres) under common ownership and development of this property for a four-story, 82-unit condominium has been proposed.

Ordinance 73-1 imposes the following restrictions upon multi-family development within the MF district:

(1) Minimum lot size of four acres;

(2) Minimum street frontage of 225 feet;

(3) Minimum lot depth of 700 feet;

(4) Minimum front yard of 100 feet, rear yard 68 feet, and side yards 50 feet;

(5) Off-street parking equal to two spaces for each dwelling unit, of which at least 25% must be enclosed;

(6) Minimum floor areas of 1,000 square feet for one-bedroom units and 1,200 square feet for two-bedroom units, with two complete bathrooms required for the latter;

(7) One-bedroom units must constitute at least 70% of the total number of dwelling units.

(8) The maximum density of units per acre may not exceed six for two-story buildings, nine for three-story buildings, and fifteen four-story buildings.

In addition to the foregoing controls, the ordinance imposes certain construction standards which include provision for a central air conditioning system, landscaping requirements, and site plan review and approval by the planning board.

No action was taken by the township to rezone plaintiffs' property, and on June 29, 1973 a hearing was held on plaintiffs' motion to compel the township to comply with the judgment entered on January 12, 1973. At the hearing plaintiffs urged that Ordinance 73-1 did not constitute compliance with the judgment in that the area rezoned for multi-family was, because of its diverse ownership, limited in its application to but a single, five-acre parcel; the ordinance imposed unreasonable and arbitrary restrictions with respect to zoning density, minimum floor areas, numbers of bedrooms and bathrooms, garages and other factors which were designed and intended to preclude any multi-family residential use consistent with the economic needs of the residents of the township and the region for such housing; and the township had failed to rezone plaintiffs' property for multi-family use although the evidence at the trial established that its property was the most suitable land available within the township for such development.

Under date of July 9, 1973 an order was entered directing the township to carry out "all rezoning required for compliance" with the prior ...

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