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Glenview Development Co. v. Franklin Township

Decided: December 18, 1978.


D'Annunzio, J.s.c.


Plaintiff corporation, a land developer, owns approximately 240 acres in the Township of Franklin, Hunterdon County, currently zoned for three-acre, single-family residential lots. It would like to develop its lands at a much higher density (see section III of this opinion) and attacks Franklin's zoning ordinance on three grounds. Its first attack is based on South Burlington Cty. NAACP v. Mt. Laurel Tp. , 67 N.J. 151 (1975), app. dism. and cert. den. 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1978), and Oakwood at Madison , 72 N.J. 481 (1977). It contends that Franklin Township is a developing municipality within the meaning of those decisions, and therefore it must rezone to accommodate a variety of housing alternatives which its zoning ordinance currently precludes. Its second attack appears to be a variation of the Mt. Laurel approach without relying on Mt. Laurel. The cornerstone of this attack is the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.; plaintiff contending that Franklin's current zoning violates the purposes of this act and therefore must fall. Plaintiff Glenview's third attack is more traditional: it contends that the Franklin zoning ordinance, as applied to its particular property, precludes any reasonable economic use of that property and therefore its lands must be rezoned.

I. Applicability of Mt. Laurel

The principles of Mt. Laurel do not apply to all New Jersey municipalities. They do not apply to developed municipalities, Pascack Ass'n, Limited v. Washington Tp. , 74 N.J. 470 (1977), or to rural municipalities which are not developing municipalities, Mt. Laurel , 67 N.J. at 160. Mt. Laurel established certain express criteria and some implied criteria for determining whether a municipality is or is not developing. A significant part of the testimony and evidence

introduced by each side focused on how Franklin Township did or did not meet the criteria. Most of the material facts bearing on this issue are not in dispute, although each side differs in the emphasis to be given, the inferences to be drawn and the characterizations to be made. The undisputed material facts create the following picture.

Franklin Township is situate approximately 45 miles west of Newark, 17 miles west of Somerville and 35 miles north of Trenton. It is 18 miles east of Pennsylvania. Its 22 square miles contain a population estimated to be approximately 2,300 in 1976. In 1950 its population was 1,255 and in 1970, 2,154. Its population density of 100 per square mile is the 55th lowest out of 567 municipalities and, in absolute numbers, it is the 100th lowest. Mt. Laurel Township's density in 1970 was 665 per square mile based on a population of 11,221, and Madison Township's population of 48,630 in 1975 yielded a density of 1,269 per square mile.

Franklin's population is typical of the Hunterdon County municipalities which adjoin it. Those municipalities and their 1975 estimated population are: Alexandria Township, 2,290; the Town of Clinton, 2,050; the Township of Clinton, 6,200; Union Township, 2,570; Raritan Township, 8,350; Kingwood Township, 2,480. Hunterdon County's estimated 1975 population is 75,000, contained in an area of 437 square miles.

Approximately 72% of Franklin Township land is devoted to agriculture. This is the highest percentage of any municipality in Hunterdon County. The Township ranks 20th in the State in land devoted to agricultural use. Only 1% of the land is devoted to industrial use and 1.7% to commercial uses.

Franklin's zoning ordinance allows for two residential zones -- a three-acre zone and a five-acre zone. The three-acre zone constitutes about 80% of the residentially zoned land. At the time of trial there was no industrial zone in

the township, and the ordinance provided for only limited commercial and business zones. Defendant's expert, Professor Rose, testified that total industrial employment in Franklin constitutes 22 jobs.

There are approximately 700 residences in Franklin, 200 of which were characterized as farm homesteads by Professor Rose. The township has two food markets, one a large supermarket, the other a smaller neighborhood type outlet. There are two garages, five churches and one tavern. The township's road system is limited, consisting of 2.58 linear miles per square mile as compared to the state mean of 10.24 linear miles and median of 9.18 linear miles. Mt. Laurel had 4.65 and Madison 4.33. There is neither a public sewer nor public water system within the township, though both utilities exist in the neighboring Town of Clinton. There is one public elementary school and one volunteer fire department within the township.

Defendant introduced testimony and evidence to establish the geological characteristics of the township. Seever, a ground water geologist, established by his testimony that the township's geology results in severe limitations in terms of water yield for domestic use and in terms of sewage disposal by individual septic systems. Plaintiff did not contest Seever's testimony or findings. Its position is that any high density development will require centralized public water and sewerage systems and that such systems are available to its property by a potential hook-up with the utilities located in the Town of Clinton to which plaintiff's lands are contiguous.

Early in its Mt. Laurel opinion the Supreme Court described the type of municipality to which its decision was directed. In so doing it articulated what commentators have described as the six criteria of a developing municipality. A developing municipality (1) has a sizeable land area, (2) lies outside the central cities and older built-up suburbs, (3) has substantially shed rural characteristics, (4) has undergone great population increase since World War II or is now in the process of doing so, (5) is not completely developed

and (6) is in the path of inevitable future residential, commercial and industrial demand and growth. 67 N.J. 160.

In the same paragraph which contains these criteria the court also said that its decision was not concerned with "central cities or older built-up suburbs or areas still rural and likely to continue to be for some time yet."

The parties' experts have seized upon these criteria for their presentations, which were designed to show how Franklin met, or did not meet, the Mt. Laurel tests.

Certain facts are obvious. Franklin Township has a sizeable land area and is not completely developed. It has not undergone great population increase since World War II and is not now in the process of doing so. With regard to the population increase, plaintiff argued that the reason Franklin has not undergone great population increase is because of the restrictive zoning. There is some merit to plaintiffs argument; however, Franklin's population growth is not out of line with most of its adjoining municipalities and is not out of line with the population density of the county as a whole. The county's overall density is approximately 171 persons per square mile; Franklin's density is approximately 100 per square mile.

Furthermore, its low population is not at odds with what one would expect from a community in which 72% of its land is devoted to agriculture. Location may also have been a factor in limiting population growth. The court notes that other municipalities situated east of Franklin and closer to the heavily populated areas of the State have grown somewhat faster than Franklin despite large lot zoning, e.g. , Tewksbury, Clinton and Readington Townships in Hunterdon County and Bernards Township in Somerset County. The court finds that Franklin's limited population and growth cannot be explained exclusively as a function of large lot zoning. See the discussion infra regarding the criteria of inevitable growth.

With regard to whether Franklin has substantially shed its rural characteristics, plaintiff does not contend that the

entire township has shed its rural characteristics. Plaintiff's expert, Moskowitz, conceded that a substantial part of Franklin must be considered rural but that the area in which his client's property is located has shed its rural characteristics because it is near the "appurtenances of urban development." Moskowitz bases his conclusion on the fact that the Town of Clinton, which adjoins plaintiff's property, has public sewers and public water, as well as on the fact that the property is near an interchange of Interstate Route 78. According to Moskowitz, other appurtenances of urban development are the Laneco Shopping Center, which is in Franklin and adjoins plaintiff's property, and the existence of two large employment centers, to wit, the Hunterdon State School and the Clinton Correctional Institute for Women, both of which are located in adjoining Union Township. The court does not find Moskowitz's testimony on this score very persuasive. Faced with Franklin's low population density, vast amounts of open land, most of which is devoted to agriculture, Moskowitz focused on the characteristics of adjoining municipalities to conclude that only a portion of Franklin, and, indeed, the portion in which his client's property is located, has shed its rural characteristics. The only factor upon which the witness' conclusion rests and which is physically located in Franklin is the Laneco Shopping Center, which contains a general merchandise and grocery discount operation, plus a handful of satellite stores.

This court finds as a fact, based upon its population, land use and lack of an adequate capital infrastructure, i.e. , roads and other public facilities and services, that Franklin Township has not shed its rural characteristics.

Criterion number two is that the municipality be "outside the central cities and older built-up suburbs of our North and South Jersey Metropolitan areas (and surrounding some of the smaller cities outside those areas, as well) * * *." The plaintiff's view is that since Franklin is not a central city or older built-up suburb, it is "outside" those described municipalities, and, therefore, the second criterion is met. Defendant's

view is more limited, it takes the position that by using the term "outside," the Supreme Court meant municipalities which were neither central cities nor older built-up suburbs but were in close proximity thereto. The court neither wholly agrees nor wholly disagrees with either position. Obviously, the Mt. Laurel principles are not applicable to the central cities or older built-up suburbs. However, that is not to say that all municipalities which are not central cities or older suburbs meet criterion number two, as contended by plaintiff. The court also rejects defendant's contention that this criterion requires close proximity to central cities. What is required is some reasonable geographic relationship between the alleged developing municipality and those areas which, because of their location, population or substantial economic activity generate a need or a demand for housing; such areas are not necessarily limited to central cities or older suburbs.

The court finds that Franklin bears a reasonable geographic relationship to areas of substantial economic activity which generate employment and demand for housing. It is within reasonable commuting distance of Trenton, Somerville, New Brunswick, Piscataway and the Plainfields. Criterion number two, therefore, is also met.

The remaining express criterion is whether Franklin is in the path of inevitable future growth. Defendant's witness contends that it is not. Historically, he contends, growth in New Jersey has been along a northeast to southwest corridor between New York City and Philadelphia. Franklin lies outside that corridor. Furthermore, defendant contends, growth in New Jersey is not necessarily inevitable. The testimony of plaintiff's witness, Moskowitz, tends to support the last point. He conceded on cross-examination that there has been a slowdown of growth in the Hunterdon County area which he attributed to general economic conditions, the energy situation and "smart municipalities." However, he also agreed that New Jersey, along with the rest of the northeast, was losing manufacturing employment and that the most recent figures indicated

that New Jersey's population, as a whole, had stopped growing. Nevertheless, the evidence, particularly the various housing statistics introduced into evidence, compel a conclusion that the North Hunterdon area, particularly along the I-78 corridor, and including Franklin Township, would experience substantial residential growth and residential development, assuming availability of financing, and zoning and planning controls which would be attractive to developers. However, the same evidence compels the inference that much of this growth would be relocation growth from within other areas of the State. To that limited extent, therefore, the criterion of inevitable growth would seem to have been met.

Accordingly, the criteria score is four to two; that is, four of the Mt. Laurel criteria have been met, resulting in an apparent victory for plaintiff. However, I do not believe the Supreme Court intended that its criteria were to be used as so much litmus paper. Application of Mt. Laurel requires the exercise of judgment, not merely a calculation. The express criteria found in that opinion provide an analytical framework; they are factors to be considered and, in a given situation, one of these factors may be much more significant than the others.

By any definition, Franklin is a rural community of low population with no major employment centers, no industry, no capital infrastructure, but with a dedication of most of its lands to agriculture. To be sure, it is on the threshold of change, and what applies to it now may not be applicable in ten or even five ...

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