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Albano v. Mayor and Township Committee of Township of Washington

Decided: May 8, 1984.


On appeal from the Superior Court, Law Division, Morris County.

Ard, Morton I. Greenberg and Trautwein. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.


This matter comes on before this court on appeal in a land use zoning case. The protracted proceedings require that the facts and procedural background of the case be set forth at length.

The action involves a 148-acre parcel of undeveloped land owned by plaintiffs Anthony Albano, Henry Monetti and Signe Mascera in Washington Township, Morris County. The land is sloping and wooded but a portion is cleared for farming though not currently so used. Critically to the case, there are five streams which flow through the parcel, four of which meet to form Electric Brook which flows through the center of the property. The fifth stream joins Electric Brook at a point immediately southeast of plaintiffs' land. Electric Brook is the sole feeder of Lake George, located in Schooley's Mountain Park southeast of the property. The lake and the park are administered by the Morris County Park Commission.

Prior to January 1, 1979 plaintiffs' property and the area surrounding it except Schooley's Mountain Park were zoned R-1, a district in which one residential unit per acre could be constructed. Much of the property surrounding the parcel has been developed so that it is surrounded on three sides by residential housing developments, portions of which are not completed.

In 1977 a proposed purchaser from plaintiff applied to the Washington Township Planning Board for a preliminary subdivision approval for the property. As a result of a lack of coordination between the planning board and the Washington Township Municipal Utilities Authority (MUA), no action was taken on the application. The planning board refused to pass on the application until the property was approved by the MUA

for a sewerage allotment while the MUA would not act until the application was considered by the planning board. It appears, therefore, that the purchase was not completed.

On January 1, 1979 as a consequence of the polluting of Lake George caused by development of nearby property, 143 acres of plaintiffs' property were rezoned from R-1 to R-3. This zoning required three acres for each residential unit. The planning board believed that plaintiffs' property was unique in its effect upon Lake George because of the streams within it. But this amendatory zoning ordinance was not applicable to the surrounding property which was largely developed. In these areas one-acre lots were allowed in sewered areas and two acres were required where septic tanks were in use.

On May 17, 1979 plaintiffs filed this action against Washington Township challenging the validity of the new zoning ordinance. They alleged that the ordinance was arbitrary, capricious and unreasonable and there was no valid basis to support the rezoning of their land. They further asserted that the ordinance did not take into account that Washington Township was a developing community obligated to provide low cost housing pursuant to So. Burl. Cty. N.A.A.C.P. v. Tp. of Mount Laurel, 67 N.J. 151 (1975), cert. den. and app. dism. 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mt. Laurel I). On April 28, 1980 an order was entered declaring the ordinance invalid because of a defect in the procedure by which it was adopted. The order gave defendant 60 days within which to enact a new ordinance. Further, defendant was directed to notify plaintiffs of any meeting at which the ordinance would be discussed.

On June 24, 1980 defendant's governing body, the township committee, without notice to plaintiffs adopted a new zoning ordinance. In light of defendant's failure to give plaintiffs notice, plaintiffs filed a motion for enforcement of litigants' rights seeking to have the new ordinance invalidated. On October 9, 1980 the court invalidated the zoning ordinance. However by a later order of December 19, 1980, the October 9

order was amended to limit the invalidation to plaintiffs' property. The judge permitted defendant 90 days within which to enact a valid zoning ordinance covering plaintiffs' property and provided that if plaintiffs remained dissatisfied with the new ordinance, the matter would be set down for trial. On December 15, 1980 defendant enacted an ordinance reinstating the R-3 three-acre zoning for plaintiffs' property.

While plaintiffs' action was pending another property owner filed an action entitled Claremont Painting & Decorating Co. v. Tp. of Washington, docket no. L-24425-78 P.W., challenging the zoning in Washington Township with respect to its property on Mt. Laurel grounds and on the basis of specific grounds relating to its property. On June 12, 1981 the court, on its own initiative, consolidated this action and the Claremont case with respect to the common issues of law and fact under Mt. Laurel. Consequently this action was bifurcated with ...

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