[172 NJSuper Page 482] Plaintiff is partial owner of 92.5 acres of land in Burlington Township, Burlington County, New Jersey which he proposes to develop. Eighty-five and one-half acres of his land were zoned to permit single-family detached dwellings on 20,000 to 40,000 square foot lots. Plaintiff prefers to build single-family houses on smaller lots and townhouses on this part of his property. The remaining seven acres are zoned and planned by plaintiff for commercial purposes. His application to the Burlington Township
Board of Adjustment for a variance which would permit his proposed development was denied. He appealed the denial to the township council. Before the appeal was heard a new zoning ordinance was adopted for the township. It placed all of plaintiff's property, including the seven acres planned for commercial use, in a residential zone and permitted construction of single-family detached houses only on 20,000 square foot lots. In addition, the new ordinance limited appeals from the board of adjustment to the township council to those cases in which the board approved a "d" variance, N.J.S.A. 40:55D-70(d), as permitted by N.J.S.A. 40:55D-17(a). Consequently, plaintiff was advised that council no longer had jurisdiction to consider the appeal and it was dismissed.
Plaintiff seeks relief here from the denial of the board, the refusal of the council and the provisions of the new ordinance. He argues that (1) the township council erred when it refused to consider his appeal; (2) the decision of the board of adjustment was arbitrary and (3) the new ordinance, insofar as it eliminated the commercial zoning, is unconstitutional. Defendants, in addition to denying these claims, contend that the basic nature of the relief sought by the plaintiff may be granted only through an amendment to the zoning ordinance. Dover Tp. v. Dover Tp. Bd. of Adj. , 158 N.J. Super. 401, 411-414 (App.Div.1978). The new ordinance establishes an application procedure for "rezoning," a term appearing often enough in zoning literature to be acceptable. It denotes nothing more than an amendment to a zoning ordinance which changes use restrictions. Plaintiff did not pursue this route since it was not in existence at the time he made his application to the board of adjustment, and defendants now say that this constitutes a failure to exhaust his administrative remedies.
After pretrial defendant township moved for summary judgment as to all issues. Meanwhile, the record of the proceedings below and the new zoning ordinance were submitted to the
court. It was agreed that all issues, except the constitutional challenge, would be submitted for decision on the basis of this material, without a trial. This opinion therefore disposes of the submitted issues by way of final judgment, determining the summary judgment motion as a part of that disposition.
A. The Appeal to the Township Council
The provisions of the new zoning ordinance limiting appeals to the township council to cases involving the approval of "d" variances is proper under N.J.S.A. 40:55D-17(a) which provides in pertinent part:
Any interested party may appeal to the governing body (1) any final decision of a board of adjustment approving an application for development pursuant to [N.J.S.A. 40:55D-70d], and (2) if so permitted by ordinance, any other final decision of a board of adjustment . . . .
It has long been the rule in this jurisdiction that an amendment to a zoning ordinance, effective during the course of an appeal from a decision of a board of adjustment, must be considered by, and is binding upon the appellate tribunal. Socony Vacuum v. Mt. Holly , 135 N.J.L. 112 (Sup.Ct.1947); Saint Joseph's Hospital v. Finley , 153 N.J. Super. 214, 225 (App.Div.1977). Consequently, the township council was bound by the provisions of the new ordinance and no longer had jurisdiction over the appeal. Its refusal to entertain it was proper.
B. The Validity of the Rezoning Provisions of the New Ordinance
Burlington Township's new zoning ordinance authorizes the filing of rezoning applications. It requires the board of adjustment and the planning board to hear these applications. These boards are to make findings of fact to reach conclusions of law and ...