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Friends of Dinky Woods v. Township of West Windsor

January 24, 1996

FRIENDS OF THE DINKY WOODS, NANCY L. BENNETT AND GREGOR Z. HAVKIN, HOWARD E. ELDRIDGE AND BRAITH A. ELDRIDGE, REBECCA A. ISEMAN AND RONALD E. VANGI, STUART H. JOHNSTON AND ALISON JOHNSTON, ALBERT MCGRIGOR, MICHAEL V. PIRONE AND JOANNE E. PIRONE, JAMES MOELLER AND TAMERRA MOELLER AND LORRAINE OSBORNE AND RALPH OSBORNE, PLAINTIFFS,
v.
TOWNSHIP OF WEST WINDSOR AND PLANNING BOARD OF TOWNSHIP OF WEST WINDSOR, DEFENDANTS. MERCER MALL PROPERTY GROUP, PLAINTIFF, V. WEST WINDSOR TOWNSHIP, TOWNSHIP COUNCIL OF WEST WINDSOR, AND WEST WINDSOR TOWNSHIP PLANNING BOARD, DEFENDANTS, V. HENDON PROPERTY ASSOCIATES, L.P., DEFENDANT-INTERVENOR.



Carchman, A.j.s.c.

The opinion of the court was delivered by: Carchman

Civil Action

Carchman, A.J.S.C.

These consolidated motions for partial summary judgment require a determination as to the methodology to be utilized in calculating the area required to lodge a valid protest to a proposed zoning change under N.J.S.A. 40:55D-63 (the statute). Broadly stated, the statute requires that the owners of 20% of certain land participate in the protest for the protest to be valid, and the statute references a 200 foot distance from the land to be rezoned. The issue presented is whether any area situated outside of the statutory 200 foot protest line is to be considered in the calculation. For the reasons set forth below, this court concludes that only the area encompassed within the 200 foot perimeter is to be considered. The Disposition of this procedural issue precludes a determination of the merits of the zoning change.

The facts are not in dispute. In Friends of the Dinky Woods v. Township of West Windsor, Docket # L-5000-94, plaintiffs, Friends of the Dinky Woods (plaintiff or Dinky Woods), an unincorporated association of property owners, together with other property owners brought this action in lieu of prerogative writ challenging West Windsor Township Ordinance 94-55. The ordinance changes existing zoning for a six-acre parcel of property on Mather Avenue in West Windsor Township (defendant or Township). After presentation of a petition executed by the owners of at least 20% of the area solely within the 200 foot line as set forth in the statute, the Township Council determined that the total area of lots any part of which fell within the 200 foot line would be considered in the computation. Based on the Township's calculation, the protestants represented an area falling well below the required 20%. *fn1 As a result of the Township's determination, the vote the Township deemed required to pass the ordinance was a simple majority of three-to-two rather than a super-majority of four-to-one. On October 24, 1994, the ordinance passed by a vote of three-to-two.

In Mercer Mall Property Group v. Township of West Windsor, Docket # L-4573-95, plaintiff, Mercer Mall Property Group (plaintiff or MMPG), challenged the enactment of West Windsor Ordinance 95-49 which changed the zoning applicable to property immediately adjacent to MMPG's property in an area known as Nassau Park. MMPG filed a protest supported by the owners of 20% of property within 200 feet of the area to be rezoned. Utilizing the same methodology as had been employed in the Dinky Wood case, the Township rejected the protest and adopted the ordinance by a simple majority vote of three-to-two rather than a super-majority of four-to-one.

A.

N.J.S.A. 40:55D-63 provides as follows:

A protest against any proposed amendment or revision of a zoning ordinance may be filed with the municipal clerk, signed by the owners of 20% or more of the area either (1) of the lots or land included in such proposed change, or (2) of the lots or land extending 200 feet in all directions therefrom inclusive of street space, whether within or without the municipality. Such amendment or revision shall not become effective following the filing of such protest except by the favorable vote of two-thirds of all the members of the governing body of the municipality.

While all sides argue their respective interpretations of this statute are consistent with the legislative intent, they agree with regard to the purpose of the statute. It is to protect the interests of property owners in the stability and continuity of zoning regulations. Levin v. Township of Parsippany-Troy Hills, 82 N.J. 174, 180, 411 A.2d 704 (1980). A zoning change adopted over a valid protest without the requisite two-thirds majority vote is invalid. Id. at 183.

The parties' proposed methodology for calculating whether the 20% threshold has been met differs significantly. The Township calculates the protest percentage by identifying all lots and land any part of which falls within 200 feet of the boundaries of the property to be rezoned. It then calculates the entire area of each lot owned by the protestants and divides this sum by the total acreage of all lots and land any part of which falls within the 200 foot radius. The municipal tax records are utilized to make these computations. The Township asserts that this represents the "standard practice" throughout the state and provides an accurate method of acreage calculation.

Both plaintiffs-- Dinky Woods and MMPG-- suggest a more limiting approach. They calculate the protest vote by identifying each owner having a lot or land any part of which lies within 200 feet of the area to be rezoned, but, in making the calculation, they consider only the area or portion of the lot or land which actually lies within the 200 foot perimeter. While the calculation cannot be based exclusively on the tax map acreage designation, the calculation can be made with either a ruler or a measuring device known as a planimeter.

An analysis of the statutory language compels the Conclusion that plaintiffs' interpretation of the statute is correct. The Township focuses on the language "area . . .of the lots or land", arguing that the use of "land" with "lots" evidences a legislative intent to include the area of all of the property that touches the 200 foot line. Relying on the "cardinal rule of statutory construction that full force and effect must be given, if possible, to every word, clause and sentence of a statute," Hoffman v. Hock, 8 N.J. 397, 406, 86 A.2d 121 (1952); see also Medical Soc'y v. Department of Law and Public Safety, 120 N.J. 18, 26-27, 575 A.2d 1348 (1990) (courts "should try to give effect to every word of the statute"), the Township suggests that plaintiffs' reading of the statute would make the words "lots" and "land" redundant and superfluous, because such a reading could have been accomplished simply by using the word "land" or "area." The Township's reading of the statute is too narrow.

"Lot" is defined as a "designated parcel, tract or area of land established by a plat or otherwise, as permitted by law and to be used, developed or built upon as a unit." N.J.S.A. 40:55D-4. "Land" "includes improvements and fixtures on, above or below the surface." N.J.S.A. 40:55D-4. The use of the words "lots" and "land" in the context of this statute has consistency and meaning as interpreted by plaintiffs. The owners of lots which lie wholly within the 200 foot perimeter are identified by the statute; owners ...


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