Reiss, P.J.D.C., Temporarily Assigned.
Plaintiffs initiated this action by means of a complaint in lieu of prerogative writs pursuant to R. 4:49-1. Plaintiffs are the owners of a 102-acre, vacant tract of land situated between the Paterson-Hamburg Turnpike and Colfax Road and south of Terhune Drive in the Township of Wayne. The property lies almost wholly within a Residence "A" or single-family residence zone.
On or about September 26, 1974 plaintiffs made an application to the Municipal Council of Wayne to designate the property as suitable for a Planned Unit Development (PUD). The town argues that the application is for a zone change.
Plaintiff's application was referred to the township's planning board for processing. A public hearing was held by the planning board on this matter on November 13, 1975, which was continued on December 1 and December 22, 1975. In the course of the hearings various experts and members of the public offered their testimony, some of which was favorable and some not. A conceptual site plan was submitted which reflected a density of 4.9 units an acre, or approximately 490 one-family units. At first plaintiffs offered to amend the density to 3.5 units an acre. Later, in accordance
with the recommendation of the municipal planning consultants and the township planner, the applicant offered to reduce the density further to 2.5 units an acre. The planning board approved the application at that density. On January 15, 1976 the planning board forwarded a letter to the township municipal council, recommending that the tract was suitable for PUD.
The matter came before the township council at its regular meeting on January 21, 1976, at which time a motion was passed remanding the application to the planning board for further review of the recommended density. With the applicant's agreeing to further reduce the density to 2.0 units an acre, the planning board again approved the site for PUD on April 12, 1976. However, on June 2, 1976, the council denied plaintiff's application and voted to defeat Ordinance 16 of 1976, which would have allowed it. No specific findings were offered by the council.
Plaintiffs then instituted this action in lieu of prerogative writs. Plaintiffs argue that the approval of the PUD project by the council after the recommendation by the planning board was merely a ministerial act. Therefore, they have moved for summary judgment, which is allowed in such a situation under R. 4:69-2. Plaintiffs seek to have the subject property declared a Residential Planned Unit Development, and further ask that the court hold certain portions of the Wayne P.U.D. ordinance invalid. Defendant township has brought a cross-motion for summary judgment, alleging that its action was a valid exercise of its discretionary, legislative authority.
The Wayne Township P.U.D. ordinance, R.O. § 211-113.1 et seq. , was enacted pursuant to the authority granted by the Municipal Planned Unit Development Act (1967), N.J.S.A. 40:55-54 et seq. Any municipality exercising powers granted by the Municipal Planned Unit Development
Act must, in enacting an ordinance, designate the municipal authority which is empowered to exercise the powers of the municipality. N.J.S.A. 40:55-56(c). The municipal authority designated in this case is the township planning board. R.O. § 211-113.3.
R.O. § 211-113.4 sets forth the procedure to be followed when an application for a PUD is made.
(1) As a condition precedent to the application for the planned unit development project, the applicant shall first apply for a zone change of the parcel which is the subject matter of the proposed project.
Such an application is filed with the planning board, which, after a public hearing, and due deliberation on the merits of the application, reports to the municipal council on the zone change. Thereupon, the municipal council "acts" on the application.
No area can be considered for a zone change unless it can connect directly into adequate public water, sanitary sewer and storm sewer systems and unless an economic feasibility study has been submitted showing why such area should be zoned into PUD. R.O. § 211-113.4(A)(2).
The planning board, in its report to the governing body, must state its finding with regard to the proposed density for the subject project. R.O. § 211-113.4(A)(3).
The action of the municipal council must follow the criteria set forth in R.O. § 211-113.4(A)(4):
Therefore, the initial application which the township must decide on is the request for a zone change. The application is not one for the approval of a specific site plan, but relates
to whether the area is suitable for PUD designation. Definitive site plans are not required prior to rezoning, although the applicant may submit preliminary sketches. However, any site plan material which is submitted prior to rezoning is considered advisory and is not binding upon the applicant. Subsequent to rezoning, the applicant is required to prepare definitive site plans and proceed through a tentative and final approval procedure, as required by the planned unit development ordinance.
The Wayne Township planned unit development ordinance and the subject application predate the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. Although that law, which replaces prior land use regulation laws, became effective August 1, 1976, Section 81 and § 82 of that act authorize the continuation under prior law of any application preceding the effective date of the new act.
Plaintiffs contend that the action of the municipal council in rejecting the recommendations of the planning board was unreasonable, arbitrary and capricious. They allege that the decision was based on factors "irrelevant to and unnecessary for its decision." They state that the council acted as if it was approving a specific site plan when all it was supposed to do at that point was review the appropriateness of the tract for designation as a PUD. This action, they further allege, points out a conflict between the Wayne Township PUD ordinance, which allows a change of zone and a site plan review, and the enabling act, N.J.S.A. 40:55-56(c), which does not.
Plaintiff's argument is twofold. First, they claim that the approval of a tract for PUD designation must be made by the planning board. The municipal council thereafter must grant the zone change if the standards before the planning board were met. In effect, they allege that the municipal council's function is a ...