Before Judges Skillman, D'Annunzio and Newman.
The opinion of the court was delivered by: D'annunzio, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
We addressed some of the issues in this case in two earlier reported opinions: Willoughby v. Planning Bd. of Tp. of Deptford, 306 N.J. Super. 266 (App. Div. 1997) (Willoughby I); and Willoughby v. Planning Bd. of Tp. of Deptford, 326 N.J. Super. 158 (App. Div. 1999) (Willoughby II). In Willoughby II, we held that an amendment to the Township's zoning ordinance was substantially inconsistent with the Township's master plan and, therefore, the governing body had to comply with N.J.S.A. 40:55D-62a (section 62a). We reproduce a summary of the facts from Willoughby II:
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. [326 N.J. Super. at 160-61.]
The relevant part of section 62a provides:
The governing body may adopt or amend a zoning ordinance relating to the nature and extent of the uses of land and of buildings and structures thereon. Such ordinance shall be adopted after the planning board has adopted the land use plan element and the housing plan element of a master plan, and all of the provisions of such zoning ordinance or any amendment or revision thereto shall either be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements; provided that the governing body may adopt a zoning ordinance or amendment or revision thereto which in whole or part is inconsistent with or not designed to effectuate the land use plan element and the housing plan element, but only by affirmative vote of a majority of the full authorized membership of the governing body, with the reasons of the governing body for so acting set forth in a resolution and recorded in its minutes when adopting such a zoning ordinance. [Section 62a.]
Thus, section 62a permits a governing body to adopt an amendment to a zoning ordinance inconsistent with the master plan if a "majority of the full authorized membership of the governing body" votes for it. Here, the amendment changing the zone from OC to TC was adopted by the required majority vote. Additionally, section 62a requires that the governing body's reasons "for so acting" must be expressed "in a resolution and recorded in its minutes." In the present case, the governing body determined that the proposed amendment was consistent with the master plan. Nevertheless, it explained in detail its reasons for changing the zoning of the tract in question from OC to TC in the "Whereas" clauses contained in the ordinance.
Although we ruled in Willoughby II that the amendment was inconsistent with the master plan, we raised an issue sua sponte and remanded to the trial court to address it. We stated:
The remaining issue, which this court raises sua sponte, is whether the [Planning] Board's resolution and the "Whereas" clauses in the ordinance effect compliance with [section 62a], despite the absence of a finding of inconsistency. We are reluctant to address and decide this issue because the parties have not raised it and the trial court did not address it. Therefore, we remand to the trial court to address this issue, after affording counsel an opportunity to brief it and otherwise to be heard. [326 N.J. Super. at 166.]
On remand, Judge DeSimone held that section 62a requires an initial finding of inconsistency by the governing body when it adopts a zoning amendment which is in fact determined to be inconsistent with the master plan. Judge DeSimone reasoned:
While the reasons set forth in the . . . 'Whereas' clauses in the Township's Ordinance may justify rezoning from OC to TC, those reasons were drafted with the mistaken belief that the re-zoning was 'substantially consistent' with the Master Plan and therefore ...