On appeal from the Superior Court, Law Division, Ocean County.
Furman, Shebell and Stern. The opinion of the court was delivered by Shebell, J.A.D.
Plaintiff appeals the judgments of the Law Division in these consolidated prerogative writ actions in which he sought to have an ordinance amending Plumsted's Zoning Code declared null and void and to have the Township Planning Board approve his soil removal application in accordance with the ordinances in effect prior to the amendment.
Appellant filed an application with the Plumsted Township Planning Board on December 27, 1984 for site plan approval and a conditional use permit allowing soil removal from his property. During the course of the Planning Board proceedings the Plumsted Township Committee introduced the following ordinance on February 11, 1985:
Section 1: Chapter XV Paragraph 4.9b of the Revised General Ordinances of the Township of Plumsted is hereby amended to include new sub-paragraph 8 as follows:
"8. Removal of soil for sale or for use other than on the premises from which the soil shall be taken, except where the primary purpose is for reasons other than removal of soil, such as irrigation ditches, and ponds, ground water ponds, and drainage ditches or excavations for the construction of a structure."
Section 2: Any ordinances or parts of ordinances inconsistent herewith are hereby repealed.
Section 3: This ordinance shall take effect immediately upon final passage and publication as required by law.
Prior to the amendment, soil removal was permitted upon Planning Board approval which was subject to a favorable determination by the Township Engineer "that the proposed removal or redistribution of soil will not be detrimental to the health, safety or welfare of the township or its inhabitants. . . ." Ordinance 10-2.2f; 10-1.2. The result of the amendment was to place soil removal on the list of prohibited uses set forth in Chapter 15, paragraph 4.9b of the Township's Revised General Ordinances.
The initial draft of the ordinance apparently prohibited all removal of soil for sale or use other than on the premises from which the soil was taken; however, after consulting with local agricultural interests as to how this would impact on the
preparation of the land for farming and impede irrigation, an exception as to irrigation and drainage ditches as well as ponds was inserted together with an exception for "excavations for the construction of a structure." Although the Township of Plumsted has failed to file a brief in this appeal, the attorney for the Planning Board submits that the language of the ordinance would permit restructuring of the land for development purposes although such an interpretation is not readily apparent.
Following the presentation of plaintiff's proofs on March 4, 1985, the Planning Board carried the matter to April 1st over the objection of plaintiff's attorney. When plaintiff appeared before the Board on the adjourned date, the Township Committee had on March 11, 1985 adopted the amendment prohibiting soil removal. Prior to the April 1st meeting plaintiff instituted his first prerogative writ action against the Township, seeking to declare the ordinance invalid. He nonetheless sought to have the Planning Board approve his site plan subject to a use variance if plaintiff was unsuccessful in his lawsuit. The Board however denied plaintiff's application by a three to two vote with two abstentions. Plaintiff then filed his second action against the Planning Board and the Township, ...