Plaintiffs instituted actions in lieu of prerogative writs challenging an ordinance adopted by defendant rezoning plaintiffs' properties from Industrial, Rural Highway and Rural Residential designations to a Preservation-Reclamation zone. The court finds the ordinance is not a valid exercise of the zoning power.
The Ciba-Geigy (hereinafter Ciba) property consists of approximately 1,275 acres upon which it and its predecessor have operated a chemical plant since the early 1950s. Apparently, the zoning has permitted that use since its inception. Each master plan adopted in the township to date has classified Ciba's property as Industrial. The other property rezoned by the ordinance is owned by plaintiffs, Samuel and Berta Reich and Rosa Singer. The site is commonly known as Reich Farm. This property has apparently been designated Rural Highway and Rural Residential in each of the township's master plans.
Portions of plaintiffs' properties have been placed on the national priorities list of hazardous waste sites (commonly known as the Superfund list) by the Environmental Protection Agency (EPA) pursuant to authority granted to the President under the Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA), 42 U.S.C.A. 9601 et seq., which authority has been delegated to the EPA. Presently the EPA is considering Ciba's plan of reclamation which is designed to remove the toxic waste. Ciba has been seeking federal, state and local approvals for the construction of a pharmaceutical plant which would replace the present use of its property.
On June 28, 1988, defendant introduced an ordinance to amend and supplement chapter 101 of the Code of the Township of Dover, which regulates land use and development. On July 12, 1988, the township conducted a public hearing and adopted the ordinance on second reading. The effect of the ordinance is to redesignate the area in which plaintiffs' properties are located to a preservation-reclamation zone. The ordinance permits the continued operation of Ciba's present manufacturing facility but renders it nonconforming.
Ciba brought an order to show cause to declare the ordinance amendment invalid. The owners of the Reich property thereafter filed a complaint challenging the ordinance. On the return date of the order, the Ciba and Reich cases were consolidated. At the time of the initial application, the court identified three issues which were to be briefed:
1. whether the ordinance constitutes a valid exercise of the zoning power of the municipality;
2. whether the ordinance imposes an invalid moratorium;
3. whether the subject which the ordinance addresses has been preempted by state or federal law.
The threshold issue relates to the validity of the ordinance. The court having found that the ordinance is not within the zoning power of the municipality, the other two issues have become moot.
This ordinance tests the limits of the zoning power. Zoning is an exercise of the state police power. Municipalities have no power to zone except as it is delegated to them by the Legislature. Taxpayers Assn. of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 20 (1976), cert. den. 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977). The power to zone is contained within
N.J.S.A. 40:55D-62. Ordinances enacted pursuant to that power, like any other municipal ordinances, are entitled to a presumption of validity. That presumption can only be overcome by an affirmative showing that the ordinance is arbitrary, capricious or unreasonable. Bow & Arrow Manor, Inc. v. West Orange, 63 N.J. 335 (1973). While the power of a municipality to zone is broad, it must utilize its power within the limits of the legislative delegation and the standards which accompany that delegation. In particular, the ordinances must bear a real and substantial relationship to the regulation of land use within the municipality. State v. Baker, 81 N.J. 99, 105 (1979); Taxpayers Assn. of Weymouth Tp., supra, 80 N.J. at 21. The ordinance must advance one of the many purposes specified in the enabling statute. N.J.S.A. 40:55D-2. The promotion of the general welfare is one of those purposes. N.J.S.A. 40:55D-2(a). The township relies heavily upon that purpose as justification for its enactment.
Justice Pashman, in the Weymouth decision, commented that the term "general welfare" is "a capacious phrase which appears to encompass all the others." 80 N.J. at 21. Our courts have regularly noted that interpretation of the zoning power is amorphous and ever evolving. So. Burl. Cty. N.A.A.C.P. v. Tp. of Mt. Laurel, 67 N.J. 151 (1975), cert. den., 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975). The Weymouth decision well summarizes the approach:
The concept of the general welfare in land use regulation has been given an expansive interpretation by both this Court and the United States Supreme Court. . . . In this regard, the term is mutable and reflects current social conditions. [80 N.J. at 21-22; footnote omitted]
Our courts have clearly enunciated the criteria by which the validity of zoning ordinances may be evaluated. They have been synthesized in Riggs v. Long Beach Tp., 109 N.J. 601 (1988), as follows:
Although the judicial role is circumscribed, a court may declare an ordinance invalid if in enacting the ordinance the municipality has not complied with the requirements of the statute. [citation omitted] Generally, a zoning ordinance must satisfy certain objective criteria. First, the ordinance must advance one
of the purposes of the Municipal Land Use Law as set forth in N.J.S.A. 40:55D-2. [citation omitted] Second, the ordinance must be 'substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements,' N.J.S.A. 40:55D-62, unless the requirements of that statute are otherwise satisfied. Third, the ordinance must comport with constitutional constraints on the zoning power, including those pertaining to due process [citation omitted]; equal protection [citation omitted]; and the prohibition against confiscation. [citation omitted] Fourth, the ordinance must be adopted in accordance with statutory and municipal procedural requirements. [citation omitted; at 611-612]
As in Riggs, the court need only address the first criterion to decide this dispute. As noted at the outset of this opinion, the court finds that the ordinance does not satisfy any lawful zoning purpose. The Riggs decision provides guidance for a resolution of this issue:
If an ordinance has both a valid and an invalid purpose, courts should not guess which purpose the governing body had in mind. [citation omitted] If, however, the ordinance has but one purpose and that purpose is unlawful, courts may declare the ordinance invalid. . . . This inquiry should be limited to an ...