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New Jersey Shore Builders Association v. Township Committee of Township of Dover

Decided: October 4, 1983.

NEW JERSEY SHORE BUILDERS ASSOCIATION, PLAINTIFF,
v.
THE TOWNSHIP COMMITTEE OF TOWNSHIP OF DOVER, ET AL., DEFENDANTS



Serpentelli, J.s.c.

Serpentelli

Plaintiff brings this action to challenge the validity of a moratorium imposed by defendant on the construction of multi-family dwelling units or on the conversion of motels into condominium units in the so-called barrier island section of the township.

The moratorium ordinance precludes the issuance of building permits for such units for a period of 180 days during which time a study commission is to report to the township committee its survey of the adequacy of the public water supply. The preamble of the ordinance rests authority for its adoption on N.J.S.A. 40:48-2 which delegates to the municipality the power to act for the preservation of the health, safety and welfare of its inhabitants. The legislation allegedly was spawned by citizens' complaints of serious water pressure problems and the questioned adequacy of water for fire fighting.

The court has analyzed the judicial and legislative history relating to the use of moratoriums by municipalities. For many years prior to the adoption of the Municipal Land Use Law

(MLUL), N.J.S.A. 40:55D-1 et seq., the existence of municipal power to enact a reasonable moratorium on certain uses while preparing and studying a new zoning ordinance was not open to question. Monmouth Lumber Co. v. Ocean Tp., 9 N.J. 64 (1952); Deal Gardens, Inc. v. Loch Arbour Bd. of Trustees, 48 N.J. 492 (1967); Campana v. Clark Tp., 82 N.J. Super. 392 (Law Div.1964). Just one year before the adoption of the MLUL the Appellate Division continued to recognize the municipality's authority to adopt a moratorium in appropriate circumstances. New Jersey Shore Builders' v. Ocean Tp., 128 N.J. Super. 135, 137 (App.Div.1974). However, that court cautioned:

We add that questions surrounding moratorium ordinances appear to be recurring ones and, therefore, the limits and standards applicable to such enactments are more appropriate for legislative action than the slow development that necessarily must accompany definition on a case by case basis. [at 138]

In an apparent direct response to this call for moratorium legislation and the known concern of municipal practitioners, the Legislature spoke in N.J.S.A. 40:55D-90 subsection a:

The prohibition of development in order to prepare a master plan and development regulations is prohibited.

Subsection b of N.J.S.A. 40:55D-90 did permit an interim ordinance not related to the land use plan element pending the adoption of a conforming ordinance within a specified time. Regrettably, my review of the legislative history of the MLUL sheds no light as to the intent of the drafters with respect to the scope of subsection a or its relation, if any, to subsection b.

Three basic interpretations of subsection a have been suggested:

1. The subsection prohibits all zoning moratoriums.

2. The subsection prohibits only zoning moratoriums which preclude construction during the process of adoption of a master plan and development regulations. All other reasonable zoning ...


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