The opinion of the court was delivered by: Brochin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Brochin and Eichen.
On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Plaintiff F.M. Kirby is the owner of a large tract of land in Bedminster Township. By an action in lieu of prerogative writs, he challenged the validity of two land use ordinances adopted by the Bedminster Township Committee. Ordinance No. 94- 26 (the R-10 ordinance) changed the zoning in the area in which plaintiff's land is situated from an R-3 Rural Residential Zone, which permitted one residence for every three acres, to an R-10 Rural Residential Zone, which permits one residence for every ten acres. Ordinance No. 95-25 permits lot-size averaging within the R-10 zone, allowing the minimum area of a lot within a development to be reduced to six acres provided that the average area of lots throughout the development is ten acres. The Law Division (Honorable Robert E. Guterl, J.S.C.) sustained the validity of the ordinances.
Plaintiff has appealed. He argues the following points in support of his appeal:
POINT ONE:NO OBJECTIVE FACTS EXIST IN THE RECORD TO SUPPORT A CHANGE IN ZONING FROM ONE RESIDENTIAL UNIT FOR THREE ACRES TO ONE RESIDENTIAL UNIT FOR TEN ACRES ON PLAINTIFF'S LAND
POINT TWO:THE ORDINANCE IS ARBITRARY, CAPRICIOUS AND UNREASONABLE AND SHOULD BE SET ASIDE
POINT THREE:IN SPITE OF THE "ZONING CANT," THE RECORD DOES NOT IDENTIFY OR DISCLOSE ANYTHING SPECIFIC TO BE PROTECTED BY THE NEW ORDINANCES
POINT FOUR:A REVIEW OF THE EXPERT REPORT OF FRANCIS J. BANISCH, BEDMINSTER'S PROFESSIONAL PLANNER, DATED JANUARY 6, 1996, DEMONSTRATES THE INADEQUACY OF ANY BASIS TO INCREASE THE DENSITY OF THE ZONE
POINT FIVE:THE AMENDED ORDINANCE WHICH PURPORTS TO PROVIDE FOR A LOT AVERAGING IS UNCONSTITUTIONALLY VAGUE WITHOUT ANY STANDARDS
POINT SIX:THERE HAS BEEN A TAKING BY THE ARBITRARY CHANGE TO TEN ACRE ZONING
POINT SEVEN:EVEN THE COURT-APPOINTED PLANNER HAS CONCLUDED THAT TEN ACRE ZONING ON PLAINTIFF'S LAND IS UNREASONABLE
POINT EIGHT:THE COURT APPOINTED EXPERT REPORT SUPPORTS THE POSITION THAT THE 10 ACRE ZONING SHOULD BE SET ASIDE
POINT NINE:THE ILLEGAL ZONING HAS DEPRIVED PLAINTIFF OF THE USE OF HIS PROPERTY AND IS A "REGULATORY TAKING"
POINT TEN:"...WHERE THE GOVERNMENTS ACTIVITIES HAVE ALREADY WORKED A TAKING OF ALL USE OF PROPERTY, NO SUBSEQUENT ACTION BY THE GOVERNMENT CAN RELIEVE IT OF THE DUTY TO PROVIDE COMPENSATION FOR THE PERIOD DURING WHICH THE TAKING WAS EFFECTIVE"
POINT ELEVEN:THE OPINION OF THE COURT BELOW DOES NOT ADDRESS THE LACK OF A RECORD SUPPORTING THE ZONING
Bedminster is a twenty-six-square-mile municipality located in the northwest corner of Somerset County and is bordered by the municipalities of Tewksbury and Readington to the west, Branchburg and Bridgewater to the south, Peapack-Gladstone, Far Hills and Bernards to the east, and Chester to the north. Route 78 runs east-west in the southern portion of the municipality. Route 202/206 and Route 287 run in a north-south direction in the eastern portion. Three county roads, Pottersville Road, Lamington Road and Burnt Mills Road, traverse the Township in a generally east-west direction. These roads are linked with a network of local roads, many of which are narrow and unpaved. Residential and commercial development has centered in the villages of Bedminster and Pluckemin and the hamlet of Pottersville; Bedminster and Pluckemin are located in the eastern quadrant of the municipality, while Pottersville is located in the extreme northern quadrant. Office complexes and Mount Laurel*fn1 housing are located in the eastern quadrant, east of Route 202/206 and Route 287. This area, unlike the rest of the Township, is sewered and has customarily been referred to as the Township's "growth corridor." Approximately seventy percent of the land in the Township is either farmland or vacant, and approximately two-thirds of the land is under farmland assessment.
Plaintiff's property includes three parcels comprising over 131 acres. It is located south of Route 78 and directly east of Route 287 at the Township's border with Bridgewater. These parcels are designated on the Bedminster tax map as Block 62, Lots 10 and 10Q (106.8 acres); Block 71.02, Lot 1Q (23.3 acres); and Block 69, Lot 4 (1.38 acres). Together, they form a somewhat rectangular piece of land running west from Route 287, and some 2000 feet south of Route 78. The land is traversed by, and has access to, Country Club Road, a two-lane local road, and has frontage on Meadow Road, also a two-lane local road. Country Club and Meadow Roads have been identified as scenic corridors in the Township's master plan. Route 287 lies directly to the east; agricultural lands, woodlands and low density residential uses lie south and west of the site; and agricultural lands and woodlands lie to the north. A portion of the northerly property line of plaintiff's property adjoins a twenty-one unit residential subdivision, with lots ranging from one to five acres, which predates the Township's 1946 zoning ordinance. Within one-half mile of the site to the south are one-acre residential lots in Bridgewater. An entrance to Route 287 north is approximately six miles from the site; an entrance to Route 287 south is approximately nine miles away; entrances to Route 78, both north and south, are approximately four miles away.
The site is mostly cleared for agricultural use, but woodlands and wetlands are on the eastern portion of the tract around a farm pond, and a finger of wetlands bisects the property in a north-south direction and around the southwestern corner. The site contains a flood plain on approximately one-third of the parcel, and the Chambers Brook runs along the eastern side of the tract. The site is relatively free of forest cover. The property is currently in agricultural use with a long history of farmland assessment, predating current ownership. A single family dwelling, with accessory structures, is located on Block 62, Lot 10.
Permitted principal uses within the R-10 rural residential district where plaintiff's property is located include farming, public and private day schools, private boarding schools, houses of worship, outdoor recreational uses and single family dwellings and their accessory structures. The R-10 district comprises most of the portion of Bedminster that lies west of Route 287, both north and south of Route 78.
From 1965 to 1977, the area approximating the R-10 district was zoned to permit residential development on five-acre lots. In 1982, following the adoption of the Township's 1979 master plan, the five-acre zone was converted to the R-3 (three-acre) district. Affordable housing litigation led to the Township's rezoning of the easterly portion of the municipality to provide for high density development. By 1994, the Township had exceeded its fair share obligation. In May 1996, Bedminster was granted substantive certification by the Council on Affordable Housing. A planned unit development known as "The Hills" comprises a large amount of the Township's fair share obligation.
At the time of adoption of the 1991 Land Use and Conservation Plan Elements of the Master Plan, the Planning Board identified a need to reconsider the lot size and density within the R-3 district, following the adoption of the State Development and Redevelopment Plan. The stated goals and objectives of the land use portion of the master plan include "maintain[ing] the special character of the countryside which has made Bedminster Township an attractive place for many generations, and manag[ing] future development to preserve the rural character, including the Township's meandering streams and brooks, open fields and pastures, tree shaded streets, and rolling landscape." The conservation element of the master plan ...