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New Jersey Shore Builders Association v. Mayor and Township Committee of Township of Middletown

Decided: March 13, 1989.

NEW JERSEY SHORE BUILDERS ASSOCIATION, A NEW JERSEY NON-PROFIT CORPORATION, PLAINTIFF
v.
MAYOR AND TOWNSHIP COMMITTEE OF TOWNSHIP OF MIDDLETOWN, NEW JERSEY, DEFENDANTS



Peskoe, J.s.c.

Peskoe

[234 NJSuper Page 620] In this action in lieu of prerogative writs, plaintiff attacks the validity of the Middletown Township moratorium ordinance adopted pursuant to N.J.S.A. 40:55D-90b. For reasons set forth below, this court concludes that the ordinance is invalid because it was based on a health officer's opinion that lacked the factual basis to demonstrate the existence of a "clear

imminent danger to the health of the inhabitants." No published opinion has yet addressed what constitutes the statutorily required demonstration that a municipality must consider. I hold that a moratorium ordinance is not tested by the usual standard applied to a municipal land use ordinance. Rather, the statute requires that municipal action have clear and specific factual support.

Plaintiff had filed an order to show cause in this matter. Plaintiff's standing to bring the suit has been determined. On the return date of the order, the hearing and trial of the in lieu of prerogative writs case proceeded together, by consent, on the record below.*fn1 Defendant's motion for summary judgment was addressed at the hearing as well. Defendant's motion is now denied. Plaintiff's requests for relief are granted.

Municipalities, generally, may exercise powers expressly granted to them and also powers necessarily or fairly implied by, or incidental to, the express grants. Inganamort v. Borough of Fort Lee, 62 N.J. 521 (1973). With respect to land use, in particular, a municipality, having no inherent power to legislate, may act only pursuant to a statutory grant of power. Lusardi v. Curtis Point Property Owners Ass'n, 86 N.J. 217 (1981); Dresner v. Carrara, 69 N.J. 237 (1976). A municipal legislative act is presumed valid and will be upheld unless, upon challenge, sufficient proof is shown to overcome the presumption. Kozesnik v. Montgomery Tp., 24 N.J. 154 (1957).

The Municipal Land Use Law (MLUL) governs land use in this State. It delegates to each municipality significant and specific powers to control the use of land within its boundaries. N.J.S.A. 40:55D-1 et seq. Among these is the power to impose a moratorium on all development. N.J.S.A. 40:55D-90b, effective March 21, 1986, sets forth the applicable standards. Prior

to the passage of this MLUL amendment, courts had disagreed about a municipality's power to enact moratoriums and, if there was such power, under what circumstances it could be exercised. N.J. Shore Builders Ass'n v. Dover Tp. Committee, 191 N.J. Super. 627 (Law Div.1983). There is no longer any doubt about the power or the legislative intent strictly to limit the use of that power.

The power to impose any moratorium may be exercised only upon the determination that there exists "a clear imminent danger to the health of the inhabitants" and the moratorium may endure only for a maximum of six months. In exercising the moratorium power, the municipality is held to a strict necessity test that contrasts strikingly with the general judicial respect accorded municipal land use legislation. The usual test was set forth in Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343 (1973) and cited recently by the Appellate Division in Sporkin et al. v. Stafford Tp. et al., 227 N.J. Super. 569, 572 (App.Div.1988) as follows:

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. [At 572 citations omitted].

The statutory moratorium provision, itself, suggests that the terms of moratoriums may vary in that they might be shorter than six months. It may reasonably and fairly be inferred that the power may also be exercised less comprehensively, that is, as to less than all development. For example, once the threatened danger is identified, a moratorium designed to meet that danger may not, necessarily, require all development to cease. If its terms are rationally related to the danger addressed, a selective moratorium, limited to certain kinds of development, may be imposed as a proper exercise of municipal power.

Middletown enacted a moratorium applicable only to major site plan and subdivision applications on October 17, 1988. Applications for other ...


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