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Warner Co. v. Sutton

Decided: June 24, 1994.


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

Before Judges Havey, A.m. Stein and A.a. Rodriguez.


The opinion of the court was delivered by


The issue in this case is whether a Law Division Judge, by consent order, may approve the settlement of land use litigation without a hearing and without the municipality adopting amendments to the zoning ordinance implementing the settlement terms. We conclude that the consent order entered here, which alters substantially the present zoning ordinance as to permitted uses and density, must be implemented by amendments to the zoning ordinance adopted pursuant to pertinent statutes. We therefore reverse, vacate the consent order, and remand for further proceedings.*fn1

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. Warner continued its mining activity as a legal nonconforming use.

In 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. Warner filed an action challenging the ordinance, alleging procedural defects. Summary judgment was granted to Warner, declaring the amendatory ordinance invalid. The Township readopted the ordinance on October 20, 1988, correcting the procedural infirmities. 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.

Warner applied to the defendant 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 the present 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. The complaint sought invalidation of the ordinance, damages, and approval of its mining license on the basis that the Planning Board had not acted upon its application within ninety-five days.

Appellants-intervenors 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.

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 mining nonconforming use status, and that it applied essentially to Warner's entire tract. Warner abandoned its challenge to the C-25 rezoning and its damage claim, and in turn was given a conditional right to construct a planned residential village on the tract.

Thereafter, there was spirited debate concerning the consent order. Members of the Planning Board objected to many of its

terms. Several members of the intervenor groups participated in the debate during public hearings. After the Planning Board's objections were discussed in executive session of the Township Committee, a revised settlement was reached between Warner and the Township defendants. An amended consent order was entered on August 22, 1991, memorializing the revised settlement. The order was entered by the Law Division Judge without a hearing.

The amended consent order, a thirty-six page document, gives a nonconforming-use status to Warner's mining activity on a designated portion of its site. No conditional use permit "or other municipal approval" is required under existing or "successor" ordinances as a condition to the mining activity, provided that Warner complies with the terms of a mining permit application filed with the amended consent order. 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 . . . ."

Significantly, the order also provides for "alternative uses" on a portion of the property not exceeding 250 acres. Location of the alternative uses on the site will be determined by Warner, subject to the Planning Board's "adjustment" in accordance with "reasonable planning criteria." The permitted alternative uses include "any or all uses . . . currently allowed in [the] M-2, Light Industrial District" and all uses added as permitted uses to that zone by future amendment. The M-2 zone presently permits such uses as manufacturing, assembly or fabrication of prepared materials, warehousing, commercial printing, marinas and lumber yards, none of which are presently permitted uses in the C-25 zone.

The amended consent order also permits, as an "alternative use," a planned adult residential community consisting of up to 300 residential units. Warner agrees to preserve ten acres of open space outside the development for each acre within the development. The order does not expressly rezone the C-25 district to provide for these "alternative uses"; it states simply that the

Township's Zoning Map will note that Warner's tract "may be subject to Court Order" which will "be available in the Planning Department." Finally, to the extent that the terms of the order may conflict with existing development standards, it provides:

where this Order explicitly provides for a standard which differs from one in the then Ordinance (as, for example, with respect to uses), the standard of this Order shall control and shall be applied in good faith so as to mesh with all other standards of the then Ordinance in a reasonable and practical manner.


Intervenors contend that the amended consent order must be vacated because it intrudes upon the exclusive zoning power of the municipality.

It is a settled proposition that zoning is inherently an exercise of the State's police power. Taxpayers Ass'n of Weymouth Tp., Inc. v. Weymouth Tp., 71 N.J. 249, 80 N.J. 6, 20, 364 A.2d 1016 (1976). Consequently, "municipalities have no power to zone except as delegated to them by the Legislature." Ibid; Riggs v. Township of Long Beach, 109 N.J. 601, 610, 538 A.2d 808 (1988); Lusardi v. Curtis Point Property Owners Ass'n, 86 N.J. 217, 226, 430 A.2d 881 (1981). The municipal governing body has the "ultimate responsibility to establish, by the adoption of its zoning ordinances and amendments thereto, the essential land use character of the municipality." Township of Dover v. Board of Adjust. of the Tp. of Dover, 158 N.J. Super. 401, 411, 386 A.2d 421 (App. Div. 1978). It does so by the "geographical delineation of its districts and, uniformly within each district, the delineation of the uses permitted therein and the limitation schedules applicable thereto in terms of lot size, lot coverage, height restrictions and the like." Id. at 411-12. That delegation of power is embodied in the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -92.

A zoning ordinance adopted by a municipality must satisfy certain objective criteria: (1) it must advance one of the purposes of zoning as codified by the MLUL, N.J.S.A. 40:55D-2; (2) it must

be substantially consistent with the land use and housing planned elements of the Master Plan, N.J.S.A. 40:55D-62, unless the requirements of that statute are otherwise satisfied; (3) the ordinance must "comport with constitutional constraints on the zoning power"; and (4) must be adopted in accordance with statutory and municipal procedural requirements. Riggs, 109 N.J. at 611-12.

A municipality has no power to circumvent these substantive powers and procedural safeguards by contract with a private property owner. A zoning ordinance may not be amended or repealed "by any act of a governing body of less dignity than that which created the ordinance in the first place." Suski v. Mayor & Comm'rs of Borough of Beach Haven, 132 N.J. Super. 158, 164, 333 A.2d 25 (App. Div. 1975). If a municipality desires to allow a deviation from the permitted uses under the zoning ordinance, it must either amend the ordinance "or follow the necessary procedures for granting a variance; it cannot short cut these procedures and permit the . . . use by means of . . . a contract with the landowner." Ench v. Mayor & Council of Tp. of Pequannock, 47 N.J. 535, 539, 222 A.2d 1 (1966). In other words, the municipality's exercise of its police power to serve the common good and general welfare of all its citizens "may not be surrendered or curtailed by bargain or its exercise controlled by the considerations which enter into the law of contracts." V.F. Zahodiakin Eng'g Corp. v. Zoning Board of Adjust., 8 N.J. 386, 394, 86 A.2d 127 (1952); Suski, 132 N.J. Super. at 164, William M. Cox, Zoning and Land Use Administration, § 34-8.2 at 522-23 (1994). Such "contract zoning" is ultra vires, and "all proceedings to effectuate it . . . [are] utterly void." V.F. Zahodiakin Eng'g Corp., 8 N.J. at 395.*fn2

There would appear to be no reason why such agreements should be ultra vires so long as (1) all negotiations and decisions with respect to the rezoning or ordinance amendments were taken at public meetings of the governing body and (2) all statutory requirements relating to the amendment to the master plan and adoption of amending ordinances were properly ...

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