On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
King, Gaulkin and D'Annunzio. The opinion of the court was delivered by King, P.J.A.D.
We conclude that the Law Division judge's determination that the Conservation Zone in question was arbitrary and unreasonable must be reversed.
The plaintiffs own 130 acres on Cedar Bonnett Island in Stafford Township. This island sits in Barnegat Bay and is connected to the mainland and Long Beach Island by State Highway 72. Plaintiffs' lands are to the south of the highway. Seventy acres are undeveloped wetlands; sixty acres are considered
uplands. These uplands were originally wetlands but were built up by the disposal of dredged soil. Their elevation varies from five to nine feet above sea level. The wetlands elevation is a maximum of two and one-half feet above sea level and is tide-flowed at that elevation.
Stafford Township zoned the 60 acres of upland for single-family residences on one-acre lots. Assuming the usual rule of thumb that 10 to 15% of the land, when developed, will be used for interior roads, and other infrastructure, plaintiffs could develop and sell about 50 one-acre lots. But plaintiffs were not satisfied with that zoning and development plan. They wanted to develop this land much more intensely.
Plaintiffs wanted to develop the 60 acres of upland with both residential and commercial uses, including six residential units per acre, a hotel, an office building, and most likely a marina. Plaintiffs attempted to minimize the environmental impact of their proposed development but the township officials obviously disagreed with their view of the appropriate scope and intensity of the development of the Island's 60 acres.
A landowner is not entitled to have his land zoned for its highest and most advantageous economic use. Maximization of profit is not the sole criterion for planning. A municipality "is not obliged . . ., to allow for the maximum density of construction that environmental factors will permit." Mt. Laurel II, 92 N.J. 158, 315 (1983). "Land use regulations should take into account ecological and environmental concerns." Albano v. Mayor & Tp. Com. of Tp. of Washington, 194 N.J. Super. 265, 275 (App.Div.1984). See also Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343 (1973), where our Supreme Court stated
It is fundamental that zoning is a municipal legislative function, beyond the purview of interference by the courts unless an ordinance is seen in whole or in application to any particular property to be clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the statute. N.J.S.A. 40:44-31, 32. It is commonplace in municipal planning and zoning that there is frequently, and certainly here, a variety of possible zoning
plans, districts, boundaries, and use restriction classifications, any of which would represent a defensible exercise of the municipal legislative judgment. It is not the function of the court to rewrite or annul a particular zoning scheme duly adopted by a governing body merely because the court would have done it differently or because the preponderance of the weight of the expert testimony adduced at a trial is at variance with the local legislative judgment. If the latter is at least debatable it is to be sustained. Kozesnik v. Montgomery Twp, 24 N.J. 154, 167 (1957); Vickers v. Tp. Comm. of Gloucester Tp., 37 N.J. 232, 242 (1962), cert. den. and app. dism., 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed. 2d 495 (1963).
Limited growth and development may be justified by environmental considerations. One-acre residential zoning is not per se ...