On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Approved for Publication March 24, 1997.
Before Judges King, Conley and Loftus. The opinion of the court was delivered by King, P.j.a.d.
The opinion of the court was delivered by: King
The opinion of the court was delivered by
In October 1990 the Township of Colts Neck (defendant) added Article 7, Section 711, Note 4 to its zoning ordinance. Note 4 provides:
In the A-1, A-2, A-3 and AG zones, if the length of the principal building, projected on the front lot line, exceeds 90 feet, the required front, each side, and rear yard requirements shall be increased one foot for each foot the building projection exceeds 90 feet.
Robert A. Damurjian (plaintiff) owned a parcel of land in the A-1 zone on which he sought to build a single-family residential dwelling with an attached garage. The defendant contended that the "length" of his proposed dwelling, "as projected on the front lot line, would be approximately 127 feet," including the garage as attached.
In January 1994 plaintiff applied to the Board of Adjustment of the Township of Colts Neck (Board), requesting (1) a determination that the "enhanced setback provisions" in Note 4 did not apply to his property, or (2) a dimensional or bulk variance, pursuant to N.J.S.A. 40:55D-70(c)(2) of the Municipal Land Use Law (MLUL), from the "enhanced minimum rear yard and side yard provisions" of Note 4. The Board denied both his interpretative application and his variance application.
Plaintiff then filed a two-count complaint in lieu of prerogative writ against defendant Colts Neck and the Board. In the second count, plaintiff demanded a judgment declaring Note 4 null and void. On October 19, 1995 the Judge rendered a decision declaring "Article Seven, Section 711, Note 4, invalid," based on his Conclusion "that the method of determining the front lot line projection bears no real and substantial relationship to the stated goals . . . for which Article Seven, Section 711, Note 4 was enacted." On November 13, 1995 the Judge entered judgment in plaintiff's favor on the second count of his complaint, "invalidating the provisions of Article 7, Section 711, Note 4." From this judgment, and only this judgment, defendant appeals. Plaintiff does not appeal from the denial of his variance application.
On appeal defendant primarily contends that the Judge erred because Note 4 is a "valid enactment under the Municipal Land Use Law and the New Jersey and United States Constitutions." We disagree and affirm. The Judge did not fatally criticize either the "concept of enhanced setback requirements" or the "enhanced setback requirements" embraced in Note 4. Rather, the Judge was careful to decide "only that the method of determining the front line projection, which triggers Article 7, Section 711, Note 4, is invalid."
We agree with the Judge's ultimate Conclusion. This section of the ordinance is invalid because there are no definitions of terms and no actual method for determining the front lot line projection in Note 4 or anywhere else in the zoning ordinance.
The ordinance contains no definitions for these terms used in Note 4: (a) "length of the principal building," (b) "projected," (c) "front lot line," and (d) "building projection." Nor does the ordinance describe the method in which the projection should be determined. Oral argument revealed the critical nature of these elements, especially where the lots are odd-shaped and not rectilinear; the streets are curved; cul-de-sacs exist, and the structures are customized and not uniform in configuration, or canted or angled to the street, or indeed all of the these conditions exist.
Glenn Gerken, defendant's township engineer since 1980, testified that Note 4 was first adopted on October 2, 1990. Gerken said that he had "developed the procedure that [he] utilized" to determine "whether the provisions of Note 4 apply to a particular property and a particular dwelling." Gerken testified that this procedure was not "set forth in Note 4" and that, while his procedure was the "only procedure [he] used" to decide Note 4 questions submitted to him, he did not know if anybody else who reviewed Note 4 questions used a "different technique" to determine "whether Note 4 applies or does not apply."
Gerken said that the multi-step procedure he had developed was primarily based on "common sense," and had been developed over time by "trial and error." Gerken was then asked to explain his procedure. He said:
Q: What's the first step that you would do?
A: All right. What we would do is take the side lot lines and extend them out so they intersect at the street line.
A: Now I realize street line is not defined in the ordinance. But I consider the lot ...