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East Mill Associates v. Township Council of Township of East Brunswick

Decided: June 12, 1990.

EAST MILL ASSOCIATES, PLAINTIFF-APPELLANT,
v.
TOWNSHIP COUNCIL OF THE TOWNSHIP OF EAST BRUNSWICK AND THE TOWNSHIP OF EAST BRUNSWICK, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Antell, Bilder and Arnold M. Stein. The opinion of the court was delivered by Bilder, J.A.D.

Bilder

This is an appeal by a landowner developer from a judgment of the Law Division upholding an ordinance rezoning its property from an O-1 zone, which, inter alia, permits apartment dwellings up to a density of 9 units per acre, to an R-3 zone, which permits development of single family detached dwellings with a maximum density of 3 per acre.

Plaintiff is the owner of a 17 acre triangular parcel of undeveloped land located on the western edge of East Brunswick. Two sides of the triangle are bordered by major thoroughfares, Milltown Road to the southwest and Ryder Lane to the east. The northwest side is contiguous with the East Brunswick border and is bounded by the Borough of Milltown. Plaintiff also owns an adjoining undeveloped 40 acre Milltown tract which extends along Milltown Road to the New Jersey Turnpike.

Prior to December 1986, the property was zoned P-1, planned industrial. In that month, it was rezoned to O-1, office, professional and apartment. Plaintiff desires to develop it for residential use, with either apartments or condominiums to a density of 9 units per acre, or about 150 units. It apparently envisions developing the contiguous Milltown tract with a shopping

mall containing at least three major tenants, one of which would be a major food store.

As noted, the subject property, as well as the adjoining Milltown property, is undeveloped. To the east and south, the area is predominantly R-3, residential zoning; a limited amount of OP-1, office professional development, appears to be permitted along Milltown Road and C-3, general commercial development, is permitted at the Milltown Road-Ryder Lane intersection.

When the property was originally rezoned to O-1 in December 1986, a density of 12 dwelling units per acre was permitted. Because neighboring residents expressed concern about the anticipated development, the zoning ordinance was amended at the same time, without objection by plaintiff, to reduce the permitted density to 9 dwelling units per acre.

The controversy which gives rise to the instant litigation results from a subsequent ordinance in which on April 25, 1988 East Brunswick again rezoned the subject property, this time to an R-3 zone, thus barring plaintiff's plans for a 150 unit residential development. On June 6, 1988, plaintiff instituted this action in lieu of prerogative writ attacking the adoption of the R-3 zoning. Following a two-day trial, in a comprehensive oral opinion the Law Division judge upheld the ordinance and entered judgment for defendants.

On appeal plaintiff makes four contentions: that the rezoning amounted to unlawful inverse spot zoning; that it was arbitrary, capricious and unreasonable; that it was procedurally defective because of a failure to comply with N.J.S.A. 40:55D-62a; and that the trial judge improperly took into account his personal knowledge of the area.

We agree with plaintiff that the failure to comply with N.J.S.A. 40:55D-62a invalidates the ordinance. The Municipal Land Use Law (Law), N.J.S.A. 40:55D-1, et seq., requires that a zoning ...


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