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Faulhaber v. Township Committee of Tp. of Howell

Decided: January 21, 1994.

JOHN M. FAULHABER, III, AND CAROL FAULHABER, PLAINTIFFS,
v.
TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HOWELL, DEFENDANT, AND WAL-MART STORES, INC., A DELAWARE CORPORATION, DEFENDANT/INTERVENOR.



O'hagan

O'hagan

OPINION

O'HAGAN, J. S. C.

This action in lieu of a prerogative writ challenges the actions taken on November 12, 1991, by the Howell Township Committee (hereinafter referred to as the "Township Committee"), in adopting an ordinance changing the zone classification of five lots from ARE-2 to Highway Development (hereinafter referred to as "HD").

The plaintiffs, who are property owners in Howell Township, contend initially that their suit filed September 14, 1992, is timely as it was filed within forty-five days of the effective filing of the ordinance with the Monmouth County Planning Board as required by N.J.S.A. 40:55D-16. In the alternative, they contend that if the suit were not filed in a timely fashion, the interests of Justice require an enlargement of the time. R. 4:69-6c.

The court, after a seven day trial, finds the right to sue accrued upon publication of the notice following the adoption of the ordinance, and that the interests of Justice do not require an enlargement of time. Therefore, judgment will enter in favor of the defendants.

The lots in question are described as Lots 11, 12, 16.01 and parts of Lots 13 and 14, in Block 74 in Howell Township. Block 74 is a fifty-five-acre triangular shaped property bounded by Route 9, Lanes Mill and Kent Roads. Route 9 is the major north-south

route through Howell Township. The roadway is divided with a concrete median divider. There is much vacant land found adjacent to Route 9, south of its intersection with Route I-195. North of that interstate roadway, the existing development along Route 9 is more established. The property involved in this law suit is located south of Route I-195. Lanes Mill Road intersects with Route 9. This intersection is one of the few intersecting roads in Howell Township allowing a motorist to turn either north or south onto Route 9. Across Lanes Mill Road from Block 74 is the Southard Elementary School. Kent Road proceeds south to the boundary with Lakewood Township in Ocean County and is bounded for the most part by lands in their undeveloped condition and by some scattered residential homes.

Until 1989, the triangular shaped parcel was zoned so that only a small portion allowed commercial development. The Highway Commercial zone (hereinafter referred to as "HC"), which up until that point was the predominant commercial zone in Howell Township, allowed small commercial uses on relatively small lots. The development resulting from HC zoning was characterized by isolated commercial uses or strip stores scattered along the highway frontage. There was no significant impediment in the requirements for the HC zone which limited or restricted access of motorists onto Route 9.

The New Jersey Department of Transportation, in the late 1980's, finished the construction dualizing Route 9 throughout its entire length in Howell Township. In 1988, more or less coincident with the completion of construction on Route 9, for the first time in its Master Plan, the Township created the concept of HD zoning. The conceptual HD zone plan required larger lots than the HC zone and as described by the planner at trial limited or restricted points of access to Route 9. Additionally, it required significant setbacks from the highway and intersecting streets. The thrust or purpose of the HD zoning described in the master plan was to attract a variety of creative, larger commercial and office uses.

The land use map included within the 1988 Master Plan depicted only a small portion of Block 74 as an HD zone, basically following the lines of the earlier HC zone. The balance of lands within the triangle were depicted on the land use map as ARE-2, an agricultural zone which allowed single family residences on lots of two acres. Across Kent Road all of the property was designated to be zoned ARE-2.

In 1989, the Township Committee adopted the zoning ordinance to effectuate the master plan and zoned a much larger portion of block 74 as HD, leaving only the five lots now at issue which measure a total of five acres as ARE-2. The lot lines created in the 1989 zoning ordinance resulted in a portion of two lots being zoned partially HD and the balance ARE-2, thus creating split lots. Other lots were undersized as compared with the requirements of ARE-2. It was established at trial that absent the expanded dimensions of this zoning district line in 1989 in the area of this triangular shaped property, development could not have gone forward and be in compliance with the requirements of the HD zone.

In the summer of 1991, Wal-Mart became interested in developing a store within the triangular area, but advised there was a need to zone the remaining five lots as HD before it could go forward with development plans, as four of the lots zoned ARE-2 comprised a portion of the property it wished to purchase.

The Township Committee was most interested to attract Wal-Mart to Howell Township. The actions taken by Howell Township in the summer and fall of 1991, which lead to the amendment of the zoning ordinance are the actions now under attack by the plaintiffs.

The plaintiffs contend that in the committee's haste to attract a large regional development it violated the Open Public Meetings Act. The plaintiffs further contend that the committee attempted to avoid public scrutiny and knowledge of its actions by ...


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