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Warner Co. v. Sutton

Decided: February 24, 1994.

WARNER COMPANY, PLAINTIFF-RESPONDENT,
v.
BARBARA SUTTON, AS SECRETARY TO THE MAURICE RIVER TOWNSHIP PLANNING BOARD; MAURICE RIVER TOWNSHIP PLANNING BOARD; MAURICE RIVER TOWNSHIP AND MAURICE RIVER TOWNSHIP COMMITTEE, DEFENDANTS-RESPONDENTS, AND NEW JERSEY CONSERVATION FOUNDATION; NEW JERSEY AUDUBON SOCIETY; AND CITIZENS UNITED TO PROTECT THE MAURICE RIVER AND ITS TRIBUTARIES; MOVANTS-APPELLANTS



On appeal from the Superior Court, Law Division, Cumberland County.

Havey, A.m. Stein and A.a. Rodriguez. The opinion of the court was delivered by Havey, J.A.D.

Havey

[270 NJSuper Page 659] In this zoning case, movants environmental groups sought post-judgment intervention for the purpose of appealing an amended consent order which memorialized a settlement between plaintiff Warner Company and defendants Maurice River Township Committee and Planning Board. The Law Division Judge denied the

motion, concluding that the application was untimely. We reverse. Because intervention was sought solely for the purpose of challenging the legality of the settlement and amended consent order on appeal, the motion should have been granted.

Warner and its subsidiary, New Jersey Silica Sand Company, own approximately 3,000 acres of land adjoining the Manumuskin Watershed in Maurice River Township. For many years Warner has engaged in the mining of sand on the site. In 1982, the property was zoned M-3, General Industrial. Mining was not a permitted use in the M-3 zone. Nevertheless, Warner continued its mining activity as a legal nonconforming use.

On October 20, 1988, the Township rezoned a portion of the M-3 district adjacent to the Manumuskin Watershed, including Warner's tract, to C-25, Conservation Zone. The C-25 district permits various uses, including residential development at one unit per twenty-five acres. Mining is neither a conditional nor permitted use.

In 1988, Warner applied to the Planning Board for a renewal of its license to continue its mining activity. The application was in part granted and in part tabled. On October 31, 1988, Warner filed an action in lieu of prerogative writs against the Township and Planning Board, alleging that the rezoning of its property from M-3 to C-25 constituted "spot zoning" and was an unlawful "taking" without just compensation. It also sought approval of its mining license, alleging that the Planning Board had not acted upon its application within ninety-five days.

Movants are nonprofit corporations having the declared purpose of protecting open spaces and the environment (such as the Manumuskin Watershed) and the preservation of wildlife. Many members of the movant groups reside in Maurice River Township. Some live adjacent to the Warner site. It is not disputed that representatives of the movant groups had knowledge of the pendency of the Warner-Township litigation.

After extensive discovery and negotiations, Warner and the Township defendants reached a tentative settlement which was memorialized in a June 24, 1991 consent order. Under the proposed agreement, the Township recognized Warner's nonconforming use status, and that it applied essentially to Warner's entire tract. Warner abandoned its challenge to the C-25 rezoning, and in turn was given a conditional right to construct a planned residential village on the tract.

There was spirited debate concerning the terms of the consent order. Defendant Planning Board objected to many of its terms. There is some evidence that several members of the movant groups participated in the debate during public hearings. The objections to the order made by the Planning Board were still not resolved by August 1, 1991. A revised settlement was thereafter reached between Warner and the Township defendants. An amended consent order was entered on August 22, 1991 memorializing the revised terms. At no time prior to the entry of the amended consent order did movants seek intervention.

The amended consent order, a thirty-six page document, provides Warner with a perpetual nonconforming-use status permitting the mining activity on its site. No conditional use permit "or other municipal approval" will be required by Warner or "its successors" under existing or "successor" ordinances as a condition to the mining activity. The order also provides that the abandonment of Warner's nonconforming use status "shall not be presumed . . . unless Warner agrees in writing with the Township that the use has been abandoned . . . ." Further, although the order does not expressly rezone the C-25 district, it provides that the Township's Zoning Map will note that Warner's tract "may be subject to Court Order" on file with the Planning Department. The order also grants Warner the right to develop an industrial complex on 250 acres, and a residential housing complex at a density which, according to movants, is greater than the C-25 density of one unit per twenty-five acres.

On October 7, 1991, movants filed a notice of appeal from the August 22, 1991 amended consent order. When Warner moved to dismiss the appeal, movants cross-moved seeking intervention in the Appellate Division. We remanded to the Law Division for consideration of movants' application to ...


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