On certification to the Superior Court, Appellate Division, whose opinion is reported at 164 N.J. Super. 409 (1979).
For reversal -- Chief Justice Wilentz and Justices Sullivan, Clifford, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the Court was delivered by Sullivan, J.
[82 NJ Page 176] The question in this case is whether a municipality, in adopting a new zoning ordinance in furtherance of the purposes of Chapter 291, P.L. 1975 (the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.) (the Law) can make a substantial change in its preexisting zoning plan free from the protest provisions
contained in the same law. N.J.S.A. 40:55D-63. For reasons hereinafter given, we hold that it cannot.
Defendant, the Township Council of the Township of Parsippany-Troy Hills, adopted a zoning ordinance in 1945 which was amended in 1968. In 1972 the Township codified its various ordinances but did not alter any substantive provisions of the zoning ordinance as amended in 1968.
Following the Legislature's enactment of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., which became effective August 1, 1976, the Township, in September 1977, adopted a new zoning ordinance. Among the various changes effected thereby was the rezoning of an area, consisting of approximately 130 acres. This property had been zoned in 1968 as a separate district, designated as the Research, Cultural and Commercial Center Zone (RCCC). The 1977 ordinance changed the RCCC zone to the Research, Cultural and Mixed Use District (RCM). This change was consistent with the newly adopted Township master plan. However, the new classification effectively modified the number of uses to which the property could be put.
On August 29, 1977, after introduction of the ordinance but before formal passage, plaintiffs, who owned or were contract purchasers of all of the land in the zone, filed a protest against the proposed change pursuant to N.J.S.A. 40:55D-63. This protest provision in the 1976 Municipal Land Use Law is carried over from the former Municipal Planning Act N.J.S.A. 40:55-35, and provides as follows:
A protest against any proposed amendment or revision of a zoning ordinance may be filed with the municipal clerk, signed by the owners of 20% or more either of the area of the lots or land included in such proposed change, or of the lots or land extending 200 feet in all directions therefrom inclusive of street space, whether within or without the municipality. Such amendment or revision shall not become effective following the filing of such protest except by the favorable vote of two-thirds of all the members of the governing body of the municipality.
L.1975, c. 291, § 50, eff. Aug. 1, 1976.
Following a second reading and public hearing, the new ordinance was adopted by a majority vote but less than a two-thirds vote of all of the members of the Township Council. The proposed change which was the subject of plaintiffs' protest was not voted on separately.*fn1
Plaintiffs filed complaints in lieu of prerogative writs challenging the validity of the new ordinance. The first count in each complaint alleged that the zoning revision was null and void as to plaintiffs' lands because the Township Council had failed to adopt the new ordinance by the requisite two-thirds vote. Cross-motions for partial summary judgment on this count were argued twice before the trial court. Plaintiffs' motions were denied on both occasions, the trial court concluding that the applicability of the protest provision was contingent on whether the ordinance constituted "a new enactment" or simply a revision or amendment of the existing ordinance. For this reason, the court decided that a plenary hearing was necessary.
Plaintiffs filed motions for leave to appeal the denials of summary judgment. The Appellate Division granted leave, consolidated the two appeals and affirmed the trial court's denial of summary judgment for reasons discussed below. Levin v. Twp. of Parsippany-Troy Hills, 164 N.J. Super. 409 ...