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Willoughby v. Planning Board of the Township of Deptford

November 12, 1999

ALAN WILLOUGHBY, WILLIAM H. REESE, SR. AND CITIZENS ALLIANCE FOR A RESPONSIBLE ENVIRONMENT, PLAINTIFFS-APPELLANTS,
v.
PLANNING BOARD OF THE TOWNSHIP OF DEPTFORD, THE TOWNSHIP COUNCIL OF DEPTFORD AND THE WOLFSON GROUP, INC., DEFENDANTS-RESPONDENTS.



Before Judges D'Annunzio, Fall and Bilder.

The opinion of the court was delivered by: D'annunzio, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 1999

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.

In this action in lieu of prerogative writs, we reversed a summary judgment in favor of defendant and remanded for a full consideration of the issues. Willoughby v. Planning Bd. of the Township of Deptford, 306 N.J. Super. 266 (App. Div. 1997). The only issue addressed and decided on remand was whether an amendment of the Township's zoning ordinance was adopted in conformity with N.J.S.A. 40:55D-26 and 62a. *fn1 The trial court determined that the amendment was substantially consistent with the Township's master plan and was valid.

The Wolfson Group (Wolfson) plans to develop a thirty acre tract of land on the east side of Hurffville Road, also designated as Route 41. Wolfson's development would include a Wal-Mart store and other retailers. Prior to September 1995, the Wolfson tract was zoned Office Campus (OC). Retailing is not a permitted use in the OC zone. Wolfson requested a zoning change from OC to Town Center (TC) to permit its planned development.

On July 26, 1995, the Township's Planning Board (Board) voted unanimously to recommend to the governing body that the Wolfson tract be rezoned. On August 23, 1995, the Board adopted a resolution memorializing its recommendation. On August 10, 1995, the governing body passed on first reading an ordinance rezoning the Wolfson tract from OC to TC. The ordinance was adopted on September 7, 1995. Both the Board and the governing body explained in detail their reasons for the rezoning, the Board in its memorializing resolution and the governing body in its ordinance. Both found the rezoning to be consistent with the master plan.

On the west side of Route 41, across from the Wolfson tract, is a residential area where plaintiffs reside. Tracts on the west side of Route 41, north and south of the residential area, are zoned TC. Plaintiffs perceive the rezoning of the Wolfson tract as an additional threat to their residential enclave.

Zoning of the Wolfson tract became controversial in 1988 when the Township was considering its master plan. In a July 1995 report, the Township's planning consultant summarized the planning history of the Wolfson tract:

The site is designated for office use in the Master Plan, and this is appropriately reflected by the current OC zoning classification.

However, during the early stages of the preparation of the master plan, preliminary drafts indicated that this area should be included as part of the Town Center District. The intent was to encourage large scale commercial development that would have facilitated the redevelopment of older, obsolete parcels in this section of the Township. The relative proximity of this area to the established commercial core and to the limited access highway network were also factors in the initial recommendation to designate the area as part of the Town Center.

Soon thereafter, and while the master plan was still under review by the Planning Board, a developer proposed a large shopping center on a tract which included all of the Wolfson tract plus additional lands to the north which extended as far as the present OC/TC zoning boundary, south of Deptford Center Road. The developer, Eileen Kirkwood, sought a zone change from the Township Council in advance of completion of the master plan. However, the proposal generated substantial opposition from residents living on the west side of Hurffville Road, on Melvina Road, McKee Avenue, and Little Drive. These residents based their opposition primarily upon anticipated traffic congestion resulting from the development. Township Council denied the rezoning request and, in response to that action by Council, the Planning Board voted to redesignate the entire area, from the shopping center site south to the TRC-1/R-20 zone boundary, as Office Campus.

The land use element of the master plan as adopted in 1988 designated the Wolfson tract as OC and the Township's zoning ordinance effected that designation.

N.J.S.A. 40:55D-64 requires the referral of any proposed zoning ordinance or amendment to the municipal planning board. N.J.S.A. 40:55D-26 (section 26) defines a planning board's function in this regard. It provides, in part, that prior to the adoption of an amendment to a zoning ordinance, "the planning board shall make and transmit to the governing body, within 35 days after referral, a report including identification of any provisions in the proposed . . ...


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