On appeal from Superior Court, Law Division, Monmouth County.
Botter, Polow and Brody. The opinion of the court was delivered by Botter, P.J.A.D.
The issue decided on this appeal is whether the Wall Township Board of Adjustment (Board) has the power to grant plaintiff's application for bulk and use variances to permit a planned unit development (PUD) on plaintiff's 42 acre tract even though the township has no ordinance that provides for planned developments.*fn1 The trial court held that the Board of Adjustment had authority to consider such an application and to grant relief, if appropriate. We disagree with that conclusion and reverse.
The facts essential to our disposition are not in dispute, and we will omit some of the procedural history in this controversy. Plaintiff's tract of land is located in the township's R-30 residential zone. This zone provides primarily for single-family dwellings; other permitted uses, such as farming, are irrelevant to this controversy. The zone requires a minimum lot area of 30,000 square feet. Plaintiff desires to develop the property on a planned unit basis with "zero lot lines" for each multiple-dwelling unit. In 1979 it filed a "request for a zoning change" with the Wall Township governing body to permit clustered single-family dwellings with zero lot lines and a density of five dwelling units per acre. The request was denied by formal resolution stating reasons for the denial. Thereafter, plaintiff filed an application for variances to permit construction of 194 clustered single-family houses in a planned development with zero lot lines. This application was withdrawn after the municipal attorney sent a letter opinion to the township's land use officer saying that a PUD could not be granted by variance unless a township ordinance provided standards for such a development. N.J.S.A. 40:55D-39 and Niccollai v. Wayne Tp.
Planning Bd., 148 N.J. Super. 150, 158 (App.Div.), certif. den. 75 N.J. 11 (1977), were cited in support of this conclusion.
Plaintiff withdrew its first application and thereafter submitted a new application for a "bulk use" and "bulk dimensional variances." This time the proposal was for 320 attached dwellings in 46 buildings containing four to eight units each with recreational facilities and open space. The project contemplated "subdivision of the Premises into three or more sections . . . with one lot for recreational amenities, three or more lots for remaining open space and individual 'zero lot line' lots for each dwelling unit to permit their individual sale and conveyances in fee simple." The projected density was 7.62 units per acre, with lots of 18 or 19 feet wide by 50 feet deep, and maximum lot coverage of 70%. The proposed dwellings were described as "moderate cost" housing for sale to individual purchasers. Plaintiff cited the normal variance statute, N.J.S.A. 40:55D-70(c) and (d), as the source of the Board's authority to issue the requested "bulk use" and "bulk dimensional" variances.
The township's land use officer, defendant Mercer, advised plaintiff that an application for bulk variances required a fee of $35 for each lot of the subdivision on which a variance was requested. A subdivision sketch plat was also requested if sketch plat approval was sought. Plaintiff's response to this letter was the filing of its complaint two weeks later charging that the filing fee request, which would total approximately $11,235 was excessive. Also sought was a determination that the Board had jurisdiction to entertain the application despite the lack of an ordinance authorizing planned unit developments in the municipality. The trial judge upheld plaintiff's contentions and ordered the Board to hold a hearing on plaintiff's application. He also gave plaintiff relief from the requested filing fees.
Defendants contend that the legislative scheme gives a municipality discretionary authority to provide for planned developments in its zoning matrix. They contend that in the absence of
such an ordinance a board of adjustment cannot create PUD zones or projects in the community through the exercise of its variance power.
Plaintiff contends that the exercise of the variance power would not be necessary if the township's ordinance provided for planned developments. Plaintiff contends that the Board's power to grant a use variance includes by definition the power to allow any use not permitted in a given zone, including a PUD, whether or not permitted in any zone in the municipality. In support of this contention plaintiff cites Fobe Assoc. v. Mayor and Council of Demarest, 74 N.J. 519 (1977), which will be discussed later in this opinion.
A "planned unit development" is defined by the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., as "an area with a specified minimum contiguous acreage of 10 acres . . . to be developed as a single entity according to a plan, containing one or more residential clusters or planned unit residential developments and one or more public, quasi-public, commercial or industrial areas in such ranges of ratios of nonresidential uses to residential uses as shall be specified in the zoning ordinance." N.J.S.A. 40:55D-6. By definition then, the ratio of mixed uses in a PUD must be determined by the zoning ordinance. Id. N.J.S.A. 40:55D-39(c) provides that an ordinance requiring approval by the planning board of subdivisions or site plans, or both, may include provisions for planned developments. Such provisions may include variations in standards for preliminary and final approvals to allow agreement to be reached with an applicant as to the basic scheme of the planned development. The ordinance may also provide requirements for the amount, location reservation, and maintenance of common open spaces, may authorize the planning board to vary the density or ...