Before Judges Shebell, D'Annunzio and Coburn
The opinion of the court was delivered by: D'annunzio, J.A.D.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
West Windsor Township and the West Windsor Township Planning Board *fn1 appeal from a judgment invalidating "Timed Growth Controls" contained in its zoning ordinance.
The township consists of twenty-seven square miles located in Mercer County. It is experiencing rapid residential development. The township's 1990 population was 16,021, almost triple its 1970 population of 6,431. Another indication of its growth is the increase in its public school population from 2,477 in 1987 to 4,488 in 1997.
The township contends that its roadway system lacks the capacity to serve the existing population and future development. To address this problem it has adopted a capital improvement program to increase roadway capacity. The time frame for completion of the program is approximately fifty years, ending in the year 2045.
As a result of the perceived inadequacies in its roadway system, and as a corollary to the capital improvement program, the township adopted "timed growth controls" as Article III of its zoning ordinance. One of the legislative findings in Article III defines their purpose. It states:
It is also necessary to control the rate of growth so that the township, county, and state have the opportunity to implement a program of road network improvements before development for which they are designed to create capacity is constructed. The most reasonable way of doing so is by deferring development until the time when road improvements designed to accommodate traffic from it are scheduled to be built and phasing development during the times scheduled for construction of such improvements.
To fulfill this purpose, the ordinance recognizes "basic rights" and "additional rights." A "basic right" is the right to develop immediately a certain percentage of the dwelling units permitted to a particular tract under the zoning ordinance. The percentage of dwelling units permitted immediately as a basic right varies within each timed growth district. There are ten such districts. The percentage of dwelling units constituting basic rights varies from twenty percent in two of the districts to fifty percent in one of the districts.
Section 22-3.1 defines "basic rights:"
The zoning rights for each lot in a timed growth district shall be divided into basic rights and additional rights. Basic rights shall constitute the percentage of the dwelling units (but not less than one unit) or nonresidential floor area permitted under the zoning. Basic rights for tracts which are zoned to include low- and moderate-income housing and basic rights for public uses shall be one hundred (100%) percent. Basic rights for all other lots shall be as follows:
Timed Growth District Percentage of Zoning Rights