The opinion of the court was delivered by: Weiss
This matter was initiated by plaintiffs, Jay Nadelson and Deborah Nadelson (plaintiffs), by way of complaint in lieu of prerogative writ against defendants, Township of Millburn (Township), the Historic Preservation Commission of the Township of Millburn (Commission), and the Township construction official, Philip Kehoe (Kehoe), individually. Plaintiffs are homeowners of a residence located at 164 Highland Avenue, Short Hills, New Jersey. Plaintiffs' property is located within the Short Hills Park Historic District, but is not designated as an historic property.
In or about September 1995, plaintiffs hired an architect, John B. Rubinstein (Rubinstein), to prepare a site plan and architectural drawings in anticipation of the construction of an addition to their house, which can be described as a Colonial style house constructed around 1945-1950. Plaintiffs sought to demolish an existing one story, two car, rear facing garage and a connecting one story left wing of the house, and to construct a new two story wing, a rear addition, and a two story, side facing four car garage. The drawings were presented to the construction official, Kehoe, who advised that he could not issue a construction permit without the review and approval of the Historic Preservation Commission. Plaintiffs did not avail themselves of the informal review process available under section 807 of the ordinance before submitting their application to the Commission. On October 12, 1995, plaintiffs and Rubinstein appeared before the Commission seeking approval of their plan. During the hearing, the Commission indicated to plaintiffs that the Commission was inclined to vote against their application and suggested that plaintiffs continue their application in order to further discuss it with the Commission. Plaintiffs refused to adjourn their case and requested a vote on their application as presented. The Commission then advised plaintiffs by way of letter dated October 13, that their application was rejected for failing to meet the criteria established by Article 8 (the Historic Preservation Article) of the ordinance. On November 2, the Commission by way of Resolution memorialized the denial of plaintiffs' application for the demolition and construction permit.
Initially, plaintiffs appealed the construction official's decision to the Millburn Zoning Board of Adjustment. Plaintiffs then withdrew that appeal in mid-January 1996, and on January 23, filed their two count complaint in lieu of prerogative writ in this action. Count one alleged that the ordinance was unconstitutionally vague. Count two alleged that the Commission's decision was arbitrary, capricious and unreasonable.
On April 8, plaintiffs filed a motion for summary judgment on count one, seeking a ruling that the ordinance be declared unconstitutional and directing the construction official to issue a construction permit, provided the plans were in compliance with all other sections of the Millburn zoning ordinance. Prior to the May 24, return date of plaintiffs' motion for summary judgment, defendants filed their motion to dismiss plaintiffs' complaint for failure to exhaust administrative remedies. On May 10, the court heard oral argument on defendants' motion. By court order dated May 31, this court denied defendants' motion to dismiss the complaint for failure to exhaust administrative remedies and, upon consent of plaintiffs, dismissed count two of the complaint with prejudice.
Plaintiffs' voluntary dismissal of count two of the complaint with prejudice bars plaintiffs from any challenge to the Commission's decision. Consequently, plaintiffs are limited to a facial challenge to the constitutionality of section 805.2 of the ordinance. On June 4, defendants filed a cross motion for summary judgment. On June 14, this court signed an order granting The National Trust for Historic Preservation in the United States, Preservation New Jersey, Inc. and National Alliance of Preservation Commissions leave to appear in this matter as amicus curiae in connection with plaintiffs' pending motion for summary judgment and all other substantive matters involving the Millburn Historic Preservation Ordinance. On June 28, this court signed an order which admitted Elizabeth S. Merritt to appear in this matter pro hac vice, as counsel for amici curiae.
The sole issue before this court on the cross-motions for summary judgment is whether section 805.2 of the ordinance is unconstitutional on its face as impermissibly vague. Section 805.2 provides:
(A) Purpose. The intent of this Section is to require historic preservation considerations to be taken into account only in the case of proposed demolitions of and additions and certain alterations to structures on non-designated sites, in recognition of the lesser importance of such structures to the integrity and character of designated historic districts.
(B) Applicability. The historic preservation provisions in this Section shall apply to all non-designated sites. Advisory opinions relating to additions and alterations on such non-designated sites shall apply only to the following:
(1) Any addition or alteration which increases the floor area of a structure, including outward expansion on an enlarged foundation area, upward expansion by adding dormers or raising the roof, and the enclosure of existing open roofed areas;
(2) Any addition or alteration which changes the roof line or increases the amount of roofed area of a structure, including unenclosed roofed areas; and
(3) Notwithstanding the foregoing, an addition or alteration shall require an advisory opinion only if it would be visible from a public street.
(C) Additions and Alterations. Any addition or alteration specified in Paragraph 805.2(B) above shall be undertaken with respect to a structure on a non-designated site only after an historic district addition advisory opinion has been issued. Such advisory opinion shall specify whether or not the proposed addition or alteration would adversely impact upon the architectural and historic character of the designated historic district, based upon consideration of the following:
(1) Architectural plans for the proposed addition or alteration and compatibility with the existing structure;
(2) Compatibility with other structures in the designated historic district in which it is located, particularly structures on nearby designated historic sites; and
(3) Features such as arrangement, texture, material, and setting which avoid exterior effects obviously incongruous with the purposes set forth in this Article.
(D) Demolition. A principal structure on a non-designated site shall be demolished only after the issuance of an historic district demolition permit, and if such permit is issued, any new construction shall be subject to the requirements of section 805.3. Such permit shall be issued only if the structure does not significantly contribute to the character of the designated historic district or the applicant satisfies the criteria for an historic site demolition permit under Section 805.1(B).
(E) Relocation. A principal structure on a non-designated site shall be relocated only after the issuance of an historic district relocation permit. Such permit shall be issued only if the structure to be relocated does not significantly contribute to the character of the designated historic district or the applicant ...