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Lionshead Woods Corp. v. Kaplan Brothers

Decided: July 29, 1991.

LIONSHEAD WOODS CORPORATION, PLAINTIFF,
v.
KAPLAN BROTHERS, KAPLAN AND SONS CONSTRUCTION CORP., KAPLAN AT LAKEWOOD, INC., TRADING AS FOUR SEASONS, AND THE TOWNSHIP OF LAKEWOOD, DEFENDANTS



Serpentelli, A.j.s.c.

Serpentelli

In this action in Lieu of Prerogative Writs the plaintiff, Lionshead Woods Corporation, seeks to overturn a zoning ordinance amendment adopted by the Township of Lakewood on March 9, 1989.

The plaintiff is the owner of approximately 70 acres located within a R-20 residential zone in the southeast quadrant of Lakewood. The property abuts on all sides the R-40 zone which consists of 603 acres. Defendant, Kaplan*fn1, is the owner of approximately 408 of those acres located largely on the westerly side of Shorrock Street. The Township of Lakewood owns the remaining 195 acres in the R-40 zone. The 603 acre tract was originally located in a R-20 zone until the R-40 zone was created by an ordinance adopted on May 24, 1984.

At the time that Kaplan acquired its property by public sale on September 13, 1984, the R-40 zoning permitted single family residences, places of worship, schools, public buildings and adult communities. As it related to the adult communities, the zoning allowed detached single family dwellings at a density of four units per acre. After the closing of title, Kaplan requested an amendment to the R-40 regulations. On May 23, 1985, the township changed its ordinance to increase the density from four to six units per acre. Furthermore, under the new ordinance residential structures in an adult community could be any of six types, namely, single family detached, patio homes, duplexes, multiplexes, townhouses and midrises containing up to six residential stories.

The plaintiff challenged the amendment and obtained a judgment on July 29, 1986, declaring the ordinance invalid because of a conflict of interest of one of the committee persons. That decision was affirmed by the Appellate Division. A petition for certification to the Supreme Court was denied.

Pending the outcome of the appeal, Kaplan proposed a modified ordinance with minor changes. It was adopted on March 5, 1987. In response, the plaintiff again filed suit. On February 15, 1989, this court entered judgment setting aside the second amendatory ordinance finding that certain sections were invalid and not severable.

Thereafter, technical revisions of the ordinance were made in an effort to harmonize it with the court's ruling. It was readopted by the township on March 9, 1989. It is this latest version which is the subject of the present controversy.*fn2

Lionshead offers several arguments to support its claim of invalidity. Plaintiff first alleges that the ordinance is so ambiguous that it is void. Principally attacked is that portion of Section 18-12.8(a)(5)(f) which provides:

Notwithstanding anything contained herein to the contrary, no more than 33 percent of any adult community project shall consist of midrise structures. [emphasis added]

Plaintiff claims that this language is subject to at least three different interpretations. It reasons that the 33 percent limitation could apply to the number of midrise structures in an adult community project, to the number of units within midrise structures in an adult community project or to the land area allocated to midrises within an adult community project.*fn3 Plaintiff insists that the ordinance is impermissibly vague because

it lacks clear standards to guide either an applicant for development or the local officials who must administer it. Additionally, plaintiff asserts that the section is not severable and, therefore, the entire ordinance amendment must be declared invalid.

The defendants maintain that the disputed section can be read in only one way to apply to the total number of units since the ordinance measures gross density in terms of units. Moreover, defendants argue that even if the court should determine that the provision is invalid, the balance of the ordinance should not be stricken. Defendants rely upon an omnibus severability clause contained within the codified Lakewood Township ordinances which states:

If any chapter, section, subsection or paragraph of this revision shall be declared to be unconstitutional, invalid or inoperative, in whole or in part, by a court of competent jurisdiction, such chapter, section, subsection or paragraph shall, to the extent that it is not unconstitutional, invalid or inoperative, remain in full force and effect, and no such determination shall be deemed to invalidate the remaining chapters, sections, subsections or paragraphs of this revision. [Chapter 1, Section 1-4]

The law is well settled that a zoning ordinance must be clear and explicit in its terms, setting forth sufficient standards to prevent arbitrary and indiscriminate interpretation or application by local officials. ...


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