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Niccollai v. Planning Board of Township of Wayne

Decided: March 3, 1977.

JOHN NICCOLLAI AND RENEE NICCOLLAI; JOSEPH SHERMAN AND LILA SHERMAN; BURTON LERNER AND RINA LERNER; RONALD HARRIS AND JANE HARRIS; PAUL DAVIS AND SHEILA DAVIS; JOHN SESSA AND ANNE SESSA; MARTIN ROSEN AND BARBARA ROSEN; PHILIP DE BRUNO AND GINA DE BRUNO; LEONARD LESNIAK AND JAN LESNIAK; IRWIN COHEN AND MRS. I. COHEN; STUART SEIGEL AND MRS. S. SEIGAL; KAY OLSON AND ANNELIESE OLSON; ROBERT ELLIS AND MRS. R. ELLIS, PLAINTIFFS-APPELLANTS,
v.
PLANNING BOARD OF THE TOWNSHIP OF WAYNE; MAYOR AND COUNCIL OF THE TOWNSHIP OF WAYNE; AND NOAH BERLEY, RALPH TEROWSKY AND JEROME MERZON, TRADING AS TERN ASSOCIATES, DEFENDANTS-RESPONDENTS



Lynch, Milmed and Antell. The opinion of the court was delivered by Antell, J.A.D.

Antell

[148 NJSuper Page 151] The question presented on this appeal is whether a municipal zoning ordinance providing for the approval of residential cluster housing developments must conform to the requirements of the Municipal Planned Unit Development Act (1967), N.J.S.A. 40:55-54 et seq.

(hereinafter PUD). The judgment under review was entered in this action in lieu of prerogative writs by the Law Division, affirming the determination of the Wayne Township Council in granting tentative approval of a proposed Combination Residential Cluster Development Plan. The municipal action was taken by Resolution 118 on July 10, 1974 on the application of defendant Tern Associates for the construction of 140 single-family homes as part of the "Manitou" project. The Law Division held that the ordinance by which the proceeding was authorized is sanctioned by N.J.S.A. 40:55-30 and is not controlled by PUD.

"Cluster" is a term used to describe a method of zoning wherein the primary focus for the control of land use density is upon the overall area designated for development within a zoning district. It departs from the traditional "Euclidean" approach insofar as the latter employs the concept of uniform dwelling lot sizes throughout a district to achieve the desired level of land use density. N.J.S.A. 40:55-31. Thus, on a chosen site within a district, by using cluster techniques smaller lot sizes may be permitted than elsewhere in the same district under applicable zoning regulations. The land remaining on the site not used for dwelling lots is consolidated as common open space for conservation and the recreational use of all the residents. Although cluster zoning results in greater intensity of use on selected locations in the development, per acre density remains substantially the same as under conventional methods. Sato and Van Alstyne, State and Local Government Law 916 (1970); Hagman, Urban Planning and Land Development Control Law , § 236 at 458 (1971).

The history and purpose of PUD were delineated by both the trial and appellate courts in Rudderow v. Mount Laurel Tp. , 114 N.J. Super. 104 (Law Div. 1971), rev'd on other grounds 121 N.J. Super. 409 (App. Div. 1972). For a general discussion of PUD see "Symposium: Planned Unit Development," 114 U. of Pa. L. Rev. 3-170 (1965).

The action below was taken under Ordinance 82-1972, adopted by the Township of Wayne February 7, 1973, by which was created Combination Residence Cluster Districts "A" and "B". It is this enactment which lies at the heart of the controversy since it is said to be at variance with PUD, and therefore invalid, in the following material respects:

(a) It fails to refer to the act, N.J.S.A. 40:55-56(a);

(b) It fails to set forth the standards of development provided by § 3 of the statute. N.J.S.A. 40:55-57(b).

(c) It fails to require the plans and application to be forwarded to the Department of Community Affairs. N.J.S.A. 40:55-59(b).

(d) It fails to require the application to conform to N.J.S.A. 40:55-59(d).

(e) It fails to require testimony under oath at public hearings. N.J.S.A. 40:55-60(a).

(f) It fails to provide for the right of cross-examination at the public hearing. ...


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