This opinion is written pursuant to R. 2:5-1(b), which permits the Court to supplement a previous oral opinion within 15 days of filing of a notice of appeal. This matter originally came before the Court on the adjourned return date of an order to show cause directing the defendants to show cause why Ordinance 8 -- 1984 of the Township of Weehawken should not be stayed during the pendency of this action. The defendants are the Mayor of Weehawken, two members of the Township Council, the Township Manager, a mayoral aide, the Planning Board and the Township itself. The complaint upon which the order to show cause is based has five counts. The first seeks a declaration that the ordinance in question is void and invalid because it was passed pursuant to a defective master plan. The second count seeks a similar declaration, on the ground that property owned by plaintiff Zanin and Son Inc. was improperly and without notice omitted from the planned development option conferred upon the Special Waterfront Zone in the zoning ordinance in question. The third count also seeks such a declaration, on the ground that Township officials illegally interfered with efforts to file a protest, pursuant to N.J.S.A. 40:55D-63 against the proposed zoning ordinance. The fourth count is framed as an action under § 1983 of Title 42 of the U.S.Code; while the fifth and final count seeks a declaration that the Land Use Element of the Weehawken Waterfront Master Plan Amendment is itself void and invalid.
When the complaint was filed and the order to show cause sought, an application was made for temporary restraints; this application was denied for reasons then stated on the record. Plaintiffs are now seeking a preliminary injunction. They have also filed a motion seeking partial summary judgment on Count 1. The Planning Board has filed a cross motion to dismiss the complaint for failure to state a claim; the Township has filed its own motion for summary judgment, and the individual defendants
have filed a motion to dismiss the claims asserted against them. Finally, Hartz Mountain Industries Inc. (hereinafter "Hartz") has filed a motion for leave to intervene and for dismissal of the complaint. Supporting briefs and affidavits have been filed in support of these various motions.
It is necessary to set forth a certain amount of background to place this complaint and the resultant motions in their proper context. Weehawken's geographic and demographic characteristics are described in the master plan. The Township has an area of 7/10 of a square mile and a population (1980) of 13,168. It is located directly on the Hudson River and is naturally divided by the Palisades into two distinct areas, the upland and the waterfront. While the waterfront comprises 39% of the Township's total area, almost all of the population resides in the upland. Plaintiffs, in their complaint, describe the waterfront area as "all but abandoned." The economic deterioration of the waterfront followed upon the demise of several rail lines which had terminated there and the 1981 bankruptcy of Seatrain, which had conducted a container shipping operation at the southerly end of the Township's waterfront.
The Township wanted to encourage the development of the immensely valuable resource it had in its waterfront and, with an eye to this, began in March of 1983 to amend its master plan and zoning ordinance. It is the resulting master plan, adopted by defendant Planning Board on June 12, 1984 and the zoning ordinance adopted by the Council on July 19, 1984 which have spawned this litigation.
Before dealing with the substantive aspects, I shall treat Hartz Mountain's motion to intervene. Intervention as of right is governed under R. 4:33-1, which provides in pertinent part "Upon timely application anyone shall be permitted to intervene in an action if the applicant claims an interest relating to the property or transaction which is the subject of the action and he
is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest. . . ." Hartz owns more than 40 acres of waterfront property in Weehawken which is directly affected by the challenged zoning ordinance. It acquired this property with the purpose of constructing a large commercial and residential development thereon. There is no doubt that its application to intervene was timely filed, since it was filed less than a month after the original complaint. As our Supreme Court has noted, "ordinally applications (to intervene) are treated liberally. . . ." State v. Lanza, 39 N.J. 595, 600 (1963). See, e.g., Allan-Deane Corp. v. Bedminister Tp., 63 N.J. 591 (1973), reversing 121 N.J. Super. 288 (App.Div.1972), and directing that non-resident applicants be permitted to intervene in a challenge to the township's zoning ordinance which had been pending for more than a year. The motion of Hartz to intervene as a party defendant is granted.
The legal framework for this action may be found within N.J.S.A., 40:55D-1 et seq., our comprehensive Municipal Land Use Act which went into effect in 1976. N.J.S.A. 40:55D-28 authorizes a planning board to adopt a master plan "to guide the use of lands within the municipality in a manner which protects public health and safety and promotes the general welfare." The importance of a municipality's master plan is demonstrated by N.J.S.A. 40:55D-62, which makes exercise of the zoning power dependent upon adoption by the planning board of a land use plan element of a master plan. "[I]t is clear, under the new Land Use Act that before a municipality may enact a new comprehensive zoning ordinance, a land use plan must have been prepared and adopted by the planning board as part of a municipal master plan." [Emphasis in the original.] Pop Realty Corp. v. Springfield Tp. Bd. of Adj., 176 N.J. Super. 441, 452 (Law Div.1980). Weehawken had adopted a land use plan and comprehensive zoning ordinance in 1976. If
it wished to replace this 1976 zoning, it was thus required to first enact a new land use plan.
The 1984 master plan, and the zoning ordinance subsequently adopted, used the device of planned development to stimulate the desired waterfront development. Planned unit development is defined within N.J.S.A. 40:55D-6 as "an area with a specified minimum acreage of ten acres or more 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 non-residential uses to residential uses as shall be specified in the zoning ordinance." The underlying philosophy of planned development was set forth in Rudderow v. Mt. Laurel Tp. Comm., 121 N.J. Super. 409 (App.Div.1972) at 412-413:
P.U.D. is a recognition by the Legislature that the "Euclidean" (traditional) zoning approach, adopted in New Jersey about 50 years ago, had outlived its usefulness, and that new and more creative flexible approaches had to be adopted to overcome "Euclidean" zoning inequities and deficiencies, and enable municipalities to provide for housing and other public needs for the present and reasonably foreseeable future. P.U.D. is the antithesis of the exclusive districting principle which is the mainstay of "Euclidean" zoning. The latter approach divided a community into districts, and explicitly mandated segregated uses. P.U.D., on the other hand, is an instrument of land use control which augments and supplements existing master plans and zoning ordinances, and permits a mixture of land uses on the same tract (i.e. residential, commercial and industrial). It also enables municipalities to negotiate with developers concerning proposed uses, bulk, density and set back zoning provisions, which may be contrary to existing ordinances if the planned project is determined to be in the public and ...