On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
King, Dreier and Gruccio. The opinion of the Court was delivered by King, P.J.A.D.
The Township Committee and Township of Manalapan appeal from a judgment holding an Ordinance in the Land Use and Development Code of Manalapan Township (Code) invalid and ultra vires. This Ordinance excluded land with certain critical terrain features from lot and floor area calculations.
This case presents a novel issue on the appellate level, that is, whether a municipality may require the elimination of ecologically sensitive areas from lot and floor area calculations in order to preserve certain land features from development and promote environmental protection. We agree with the Conclusion of the Law Division Judge that adoption of the Ordinance here was ultra vires, and beyond the legislative power of Manalapan Township, because the municipality impermissibly altered certain statutory definitions in the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129, (MLUL). We affirm.
Plaintiffs are trade associations composed of corporations, partnerships and individuals who are actively engaged in residential development and construction in Manalapan and own real property in the Township. The Townshipdivided into northern and southern sections by a railroad line which runs east and west through the Township. The northern portion of the Township is largely developed in a "suburban fashion" with small residential lots. The southern portion is less developed and more rural with substantial tracts of vacant land. The southern portion of the Township must accommodate future development.
On May 10, 1989 the Township Committee introduced the Omnibus Ordinance, a package of amendments to the Township Code that included the specific Ordinance at issue here: Section I. The Township referred the Omnibus Ordinance to the Planning Board (Board) for a report and recommendations, pursuant to N.J.S.A. 40:55D-26.
The Board reviewed the Omnibus Ordinance at its meeting on May 25, 1989. The Board concluded that the proposed amendments were consistent with the Township's Master Plan and Land Use Plan and in part alleviated concerns about sensitive land features by excluding such areas from the calculation of lot areas and density requirements. The Board recommended the adoption of the Omnibus Ordinance without modification.
On June 14, 1989 the Township Committee adopted the Omnibus Ordinance. The portion of the Omnibus Ordinance in issue in this case states:
The establishment of appropriate population densities and concentrations that contribute to the well-being of persons and neighborhoods, and that preserve the environment, require that each lot be suitable for its intended use. Within the Township of Manalapan, the presence of flood hazard areas, wetlands, hydric soils, and steep slopes constrain the use of land due to the dangers of flooding, erosion, siltation, water quality degradation, and loss of natural habitat. This section amends the Township Development Regulations to exclude
from lot area calculations sensitive natural features whose disturbance by development affects the public health, safety and welfare.
These amendments are designed to advance the purposes of the Municipal Land Use Law and to coordinate municipal procedures shaping development with land use policies of the State of New Jersey pursuant to the State Planning Act and the Freshwater Wetlands Protection Act. [ N.J.S.A. 13:9B-1 to -30].
Section 130-66, Exclusions from lot area calculations, Article XIII, Chapter 130, is hereby amended to read as follows:
130-66 Exclusions from lot area calculations.
A. The following features shall not be included within the area of a lot for the purpose of calculating lot area as required by each zone or for calculating permissible floor area based upon a floor area ratio standard:
(1) An existing or proposed right-of-way.
(2) Any portion of a lot classified as a floodway by the New Jersey Department of Environmental Protection or as an area of special flood hazard or floodway pursuant to Section 108-6, Definitions, Flood Drainage Control, of the Township Code.
(3) Wetlands and any required wetlands transition area pursuant to the New Jersey Freshwater Wetlands Protection Act (N.J.S.A. 13:9B-1 et seq.).
(4) Slope areas where the inclination of the land's surface from the horizontal is fifteen (15) percent or greater.
(5) One-half of the slope areas where the inclination of the land's surface from the horizontal is ten (10) percent or greater ...