On appeal from the Superior Court of New Jersey, Law Division, Morris County, whose decision is reported at 220 N.J. Super. 388.
Shebell, Gruccio and Landau. The opinion of the court was delivered by Shebell, J.A.D.
[230 NJSuper Page 347] Defendant Morris Township Planning Board (Board) appeals from a judgment of the Law Division which set aside the Board's denial of site plan approval of a 292-unit housing complex on 64 acres of land, of which 64 units will be Mt. Laurel units, affordable to low or moderate income families. See So. Burl. Cty. N.A.A.C.P. v. Tp. of Mt. Laurel, 67 N.J. 151 (1975). The Board denied plaintiff Hollow Hill Associates a waiver or variance from that portion of the zoning ordinance requiring a 50-foot landscaped buffer between buildings and neighboring property lines.
Plaintiff seeks relief from this requirement because a portion of its property is burdened with a utility easement, the terms of which prohibit landscaping on the area covered by the easement. Plaintiff intends to comply with the objective of the buffer requirement by providing landscaping on other property parallel to the neighboring property line.
The Law Division Mt. Laurel judge held that the Board was arbitrary in failing to give plaintiff a waiver from the buffer requirements of the ordinance. He further held that the Board had no authority to deny site plan approval based on the plaintiff's refusal to commit itself to a particular architectural style of the buildings, which was an alternative basis for the Board's denial.
Litigation was initially brought by the Public Advocate and others against 27 Morris County municipalities alleged to have exclusionary zoning ordinances. The situation is described more fully in the Law Division's opinion in this case, 220 N.J. Super. 388, 392-93 (Law Div.1987), and in a prior opinion at 197 N.J. Super. 359 (Law Div.1984), aff'd 209 N.J. Super. 108 (App.Div.1986). In 1984 Morris Township entered into a settlement agreement with the Public Advocate. The township agreed to rezone several tracts of land, including that owned by plaintiff, to permit and facilitate the construction of Mt. Laurel housing. In August 1985 defendant Board gave conditional approval to plaintiff's general development plan, one of the conditions being that plaintiff obtain site plan approval.
Plaintiff submitted an application in September of 1985, which the Board denied "without prejudice" on April 7, 1986, on the ground that plaintiff had made significant changes in its development plan. Plaintiff filed an action in lieu of prerogative writ; however, plaintiff and the Board resolved their differences, and by consent order dated May 14, 1986, plaintiff's application was remanded to the Board. In July 1986 plaintiff and two other developers with pending site plan applications for developments which included Mt. Laurel housing
moved for relief against the Board based in part on the Board's alleged delay in processing their applications for development. By order dated August 13, 1986, plaintiff intervened in the underlying lawsuit brought by the Public Advocate. Following the Board's rejection of plaintiff's application for site plan approval as mentioned above, plaintiff moved before the Mt. Laurel judge to set aside the denial. In response to the May 26, 1987 order of reversal from the Law Division, the Board adopted a resolution "under protest" approving the site plan subject to conditions. The Law Division order was certified as final, pursuant to R. 4:42-2, and defendant filed the within appeal.
The property in question, a 64-acre tract of land known as the Moore Estate, is located in the RH-5 zone which is designed for a combination of high-income housing and lower-income units on relatively large sites. It is bisected east to west by Woodland Avenue. The upper or northern portion contains 52 acres and held a large manor house and several out buildings. The upper portion is elevated and has steep slopes. The 12 acres to the south are low-lying and relatively flat. All of the lower-income units are to be constructed on the southerly tract. One of the provisions in the municipality's Mt. Laurel ordinance permits applicants of 10 or more acres to submit a general development plan (GDP) prior to seeking site plan or subdivision approval.
On August 5, 1985, the Board granted GDP approval to plaintiff. At that time, plaintiff intended to construct 297 units, 63 of which would be affordable to lower-moderate income people. After obtaining GDP approval, plaintiff submitted the project to the Board for site plan approval. Thereafter plaintiff revised its plans on a couple of occasions, at first reducing the number of units to 279 and then in March 1986 increasing the number to 314. A reason for the redesign was the fact that the southerly portion of the property had approximately 1.2 acres of unbuildable wetlands. The Board felt that the GDP approval could not be extended to a 314-unit complex and denied site
plan approval without prejudice. This denial triggered plaintiff's aforementioned complaint in lieu of prerogative writ which resulted in the initial settlement with the Board.
In the proposal ultimately submitted to the Board for 228 market-rate units and 64 Mt. Laurel units, plaintiff sought only relief from § 95-72 of the municipality's Mt. Laurel ordinance which requires a 50-foot, landscaped buffer. That section reads as follows:
All development shall maintain a fifty-foot minimum buffer to all exterior property lines. Said buffer shall be bermed or landscaped and remain unoccupied except for entrance roads or utilities. Buffers may include minimum yard requirements for all single-family, two-family and townhouse development.
The southern boundary of plaintiff's property is subject to a utility easement held by Texas Eastern Gas Transmission. This easement cannot be bermed and cannot be planted with shrubbery or trees. Therefore, plaintiff proposed to create a buffer of between 100 to 140 feet by utilizing a bridle path owned by the Morris County Park ...