Feller, J.s.c. (retired and temporarily assigned on recall).
This is an action in lieu of prerogative writs. This matter was heard on plaintiff's appeal to reverse the ruling of defendant Springfield Board of Adjustment in denying a variance and also to set aside the Springfield zoning ordinance as it affects plaintiff's property and also in its entirety.
Plaintiff is the owner of land situated at 355, 389 and 469 Route 22 East, Springfield, New Jersey. Plaintiff's land, which embraces approximately 84,101 square feet, is located in an area zoned I-40 or General Industrial under the Springfield zoning ordinance as amended through February 1977. Much of the area is made up of retail and commercial nonconforming uses.
Plaintiff applied to defendant on July 5, 1978 for preliminary and final site plan approval and for a use variance. Plaintiff's property is currently a nonconforming use housing retail and commercial operations. Plaintiff sought to improve the present uses and to construct and operate several new retail and commercial uses. Defendant board denied the application based upon an ordinance prohibiting shopping centers within the town and retail usages in the I-40 zone.
Plaintiff contends that the positive and negative criteria have been satisfied pursuant to N.J.S.A. 40:55D-70(d), which entitles it to a variance, and that the zoning ordinance as it affects his property is invalid and unconstitutional and restricts the reasonable use thereof, contrary to constitutional safeguards. Plaintiff further alleges that the ordinance is discriminatory and vague and that the ordinance is invalid in that defendant failed to adopt the land use plan element of a master plan pursuant to N.J.S.A. 40:55D-62.
[The court here held that the action of the board of adjustment in denying a use variance was correct]
[The court found plaintiff's contention that the zoning ordinance is unconstitutional and invalid as it affects his property without merit]
Plaintiff contends that the zoning ordinance, dated February 1977, is invalid since the planning board failed to adopt the land use element of a master plan prior to the adoption of that ordinance by the governing body, as required by the new Land Use Act.
N.J.S.A. 40:55D-62 reads in part:
a. The governing body may adopt or amend a zoning ordinance relating to the nature and extent of the uses of land and of buildings and structures thereon. Such ordinances shall be adopted after the planning board has adopted the land use plan element of a master plan and all of the provisions of such zoning ordinance or any amendment or revision thereto shall either be substantially consistent with the land use plan element of the master plan or designed to effectuate such plan element. [Emphasis supplied]
The term "shall," as used in the above statute, indicates a mandatory requirement. N.J.S.A. 40:55D-3. Defendants do not deny that no new or modified plan was adopted prior to the adoption of the ordinance in question.
Defendants contend that a master plan was adopted and the ordinance in question is based on the prior master plan of 1964 and that there is no requirement that the planning board adopt a new master plan. Defendants further state that plaintiff has failed to cite statutory authority or case law to support its position. There is no case law on point, under the new Land Use Law, for this appears to be a unique situation. However, the court believes there is ample statutory authority to support plaintiff's position.
N.J.S.A. 40:55D-62 clearly indicates that ordinances should not be adopted until after the land use element of the master plan has been adopted by the planning board.
In Cochran v. Summit Planning Bd. , 87 N.J. Super. 526 (Law Div. 1965), this court rendered its decision under the provisions of the old Land Use Law as follows:
The master plan represents at a given time the best judgment of the planning agency as to the proper course of action to be followed. In this stage the plan for community development remains flexible and is not binding, either on government or individual. See Webster, Urban Planning & Municipal Policy 265 (1958). A master plan is not a straitjacket delimiting the discretion of the legislative body, but only a guide for the city, Rhyne, Municipal Law , sec. 32-59, p. 977 (1957); furthermore, a master plan is nothing more than the easily changed instrumentality which will show a commission from day to day the progress it has made. Haar, Land Use Planning 693 (1959).
The mere adoption and recording of a master plan has no legal consequence. The plan is merely a declaration of policy and a disclosure of an intention which must thereafter be implemented by the adoption of various ordinances. Horack & Nolan, Land Use Controls , 36 (1955).
In New Jersey the fact that a master plan adopted by a planning board has no legal consequences is substantiated, not only by the absence of statutory language to that effect, but also by the necessity of a municipality's adoption of the master plan by the governing body before the plan takes effect. See N.J.S.A. 40:55-1.13; Wollen v. Fort Lee , 27 N.J. 408, 424 (1958), where the court said that "the master plan is not conclusive on the governing body." Moreover, it is not mandatory for a township to create a planning board and a governing body could assume directly the duties of a planning board. Jones v. Long Beach Tp. Zon. Bd. of Adjust. , 32 N.J. Super. 397, 406 (App.Div.1954).
Professor Cunningham, in his "Controls of Land Use in New Jersey," 15 Rutg.L.Rev. 1, 19 (1960) said:
The statute does not require that the governing body shall accept the recommendation of the planning board nor does it require a vote of more than a majority of the governing body to adopt an official map * * * which is inconsistent with the planning board's recommendation. It would thus appear that even after the planning board has adopted a master plan, the governing body is free to ignore the recommendation of the planning ...