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Brunetti v. Mayor and Council of Township of Madison

August 27, 1974


Furman, J.s.c.


Plaintiff moves for summary judgment in litigation challenging the denial of his application for a zoning variance. The Madison Township zoning ordinance of 1970 and the amended zoning ordinance of 1973 were struck down as unconstitutional in Oakwood at Madison, Inc. v. Madison Tp., 117 N.J. Super. 11 (Law Div. 1971), certif. granted 62 N.J. 185 (1972), on remand 128 N.J. Super. 438 (Law Div. 1974). Both trial court judgments were stayed pending appeal.

On September 11, 1972 plaintiff sought a zoning variance for a 1256-unit garden apartment complex on 127 acres of vacant land, approximately 65 acres in R-80 Residential, approximately 38 acres in S-D Special Development and approximately 23 acres in M-1 Light Industrial. Other holdings of his surround this 127-acre parcel, which is west of Route 9 in a sparsely developed section of the township.

The board of adjustment recommended the use variance and incidental bulk variances on December 19, 1972. There were no objectors at the board hearings. The Old Bridge Civic Association through a spokesman favored approval. The mayor and council failed to act on the board recommendation within the statutory 60-day period, as extended several times, amounting to a denial pursuant to N.J.S.A. 40:55-39.1. Plaintiff brought this prerogative writ action on July 23, 1973.

The amended zoning ordinance was adopted, effective October 1, 1973. Plaintiff's 127-acre parcel was rezoned into a Planned Unit Development zone of over 600 acres. Garden apartments, townhouses and high rise apartments are permitted subject to housing unit density limitations and in proportions to single-family houses, according to total acreage within a planned unit development and other factors. PUD is optional. If not availed of, the governing zoning remains that in the 1970 ordinance.

Plaintiff rejects the PUD alternative and presses for summary judgment on the single issue whether the statutory denial of his variance application was unreasonable and therefore invalid. Denial through inaction by the mayor and council, not approval after hearings by the board of adjustment, carries with it the presumption of validity. Wickatunk Village, Inc. v. Marlboro Tp., 118 N.J. Super. 445, 449, 450 (Ch. Div. 1972); cf. Wharton Sand & Stone Co. v. Montville, 39 N.J. Super. 278, 283 (App. Div. 1956), and Nalitt v. Millburn, 66 N.J. Super. 292, 303 (Law Div. 1961).

To reverse the statutory denial this court must determine that it was unreasonable under the evidence not to conclude that a special reason was established for the variance and that the variance "can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55-39(d); Shell Oil Co. v. Shrewsbury Bd. of Adj., 64 N.J. 334 (1974), rev'g 127 N.J. Super. 60 (App. Div. 1974).

The special reason urged by plaintiff is the need for moderate-income multi-family housing within the township and region. The board of adjustment found that such need exists and that it would be served by plaintiff's project, relying upon expert opinion, county and township population projections, the low vacancy rate of present garden apartments within the township, plaintiff's estimates of his rentals, which would be within reach of moderate-income households, and the general knowledge of the board members. In addition, the adoption of a rent control ordinance effective July 16, 1973, based upon a rental housing shortage within the township, supports the board's finding.

No reported decision has held that a need for private multi-family housing constitutes a special reason justifying a zoning variance. DeSimone v. Greater Englewood Housing Corp. No. 1, 56 N.J. 428 (1970), so categorizes semi-public multi-family housing, at least under the circumstance that

it would relieve and replace substandard housing in ghetto areas.

A series of other precedents recognizes uses in furtherance of the general welfare as special reasons within the statute. Kunzler v. Hoffman, 48 N.J. 277 (1966) (private hospital for emotionally disturbed); Kramer v. Sea Girt Bd. of Adj., 45 N.J. 268 (1965) (fireproof hotel to replace dangerous structure); Burton v. Montclair, 40 N.J. 1 (1963) and Black v. Montclair, 34 N.J. 105 (1961) (extensions of private secondary and elementary schools); Andrews v. Ocean Tp. Bd. of Adj., 30 N.J. 245 (1959) ...

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