On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3491-99.
Before Judges Skillman, Wallace, Jr. and Carchman.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
OPINION CORRECTED 03/14/02
The City of Clifton and two of its residents appeal from a summary judgment which dismissed their complaints challenging the validity of a Borough of West Paterson zoning ordinance that rezoned land immediately adjacent to Clifton to allow residential development at a density of twenty units per acre. We conclude that the factual materials submitted by plaintiffs presented contested material issues of fact, and therefore the trial court erred in granting summary judgment.
The rezoning challenged by plaintiffs was part of a Mount Laurel*fn1 compliance plan that West Paterson submitted to the Council on Affordable Housing (COAH). This plan included proposed construction of low and moderate housing on three sites, one of which was a six and a half acre tract in an abandoned rock quarry owned by defendant Garret Pointe Associates (Garret Pointe). The compliance plan and implementing ordinance provide for the construction of 130 residential units on this site, 20 of which would be affordable to lower income households. On October 6, 1999, COAH granted substantive certification approving West Paterson's compliance plan.
John and Olga Sartoga, who live on Paxton Street in Clifton, a narrow, dead-end street that would have to be extended and improved to allow access to the proposed residential development on the Garret Pointe site, and the City of Clifton, filed separate actions in lieu of prerogative writs against West Paterson challenging the validity of the amended zoning ordinance. The trial court consolidated the Sartoga and Clifton complaints and granted Garret Pointe's motion to intervene as a defendant.
After discovery, plaintiffs and defendants filed cross- motions for summary judgment. In support of their motion, plaintiffs relied upon a lengthy report by a planner, Stan Lacz, who characterized the site as environmentally sensitive due to steep grades with related storm water runoff problems and an abandoned quarry with a stone face that ranges from forty to seventy feet in height. Lacz also noted that the only access to the site is by a footpath from the end of Paxton Street, which is a twenty-three foot wide roadway that currently provides access to three single family residences. In addition, Lacz indicated that there is no safe pedestrian access to the Garret Pointe site. According to Lacz, "[t]he ordinance does not secure safety because an excessive number of residential units are being placed on a dead-end street and the development . . . is being placed adjacent to quarry walls, which is an attractive climbing hazard to children and adults even if the walls are retrofitted to prevent falling stones." Lacz also stated that "[t]he ordinance does not establish an appropriate population . . . concentration [because it] . . . will produce population density substantially different from that of the adjacent neighborhood as well as a degradation of the environment by placing such density on a steep slope situation." Lacz's report concluded that the rezoning of the Garret Pointe site for high density residential development is "contrary to the principles of good planning" as set forth in the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136.
In addition to the Lacz report, plaintiffs relied upon a report by another planner, Charles S. DiMarco, which focused on the vehicular access problems that would be created if a high density residential development were constructed on the site. He pointed out that Paxton Street, which provides the sole access to the site, empties into Mountain Park Road, a two lane county roadway. According to DiMarco, "[t]he existing topography, including steep side slopes, a narrow right-of-way and significant horizontal and vertical curves and grades along both Paxton Street and Mountain Park Road severely limit sight distance at the intersection of Paxton Street and Mountain Park Road." DiMarco concluded that "[i]mprovements to help alleviate the existing inadequate sight distance would involve a major reconstruction of the intersection including an increase in the horizontal curve radius and a decrease in the steep downward grade along eastbound Mountain Park Road," which would require the acquisition of private property at the intersection. DiMarco indicated that without such a major reconstruction, "[i]t is unlikely that any significant increase in traffic entering Mountain Park Road from Paxton Street could be safely handled." DiMarco also concluded that "Paxton Street is not conducive to widening due to the significant side slope grades along each curb," and that "an extension of Paxton Street into the existing quarry would have to contend with major rock excavations, potentially unsuitable soil conditions and adverse grades that would make the viability of any street extension highly questionable."
In opposition to plaintiffs' motion and in support of their own motions for summary judgment, defendants submitted several expert reports that disputed the conclusions of plaintiffs' experts concerning the suitability of the Garret Pointe site for high density residential development.
In granting defendants' motion for summary judgment, the trial court noted that West Paterson's zoning ordinance is entitled to a presumption of correctness, and it concluded that plaintiffs' expert reports had failed to overcome that presumption. The court relied on the fact that the rezoning of the Garret Pointe site was "an integral element in [the] satisfaction of West Paterson's [constitutional] obligation to provide opportunities for affordable housing," and that plaintiffs had not intervened before COAH to oppose approval of West Paterson's compliance plan. The court also stated that plaintiffs' challenges to the rezoning of the Garret Pointe site were based "primarily [on] site plan issues, which can be addressed by the Planning Board," but "cannot form the basis for attacking a zoning ordinance."
On appeal, plaintiffs argue that their expert reports raised contested material issues of fact as to whether the rezoning of the Garret Pointe site for high density residential development conforms with the policies of the MLUL. Plaintiffs also argue that the trial court improperly considered as evidence its own observations derived from a site inspection, and that the trial court should have granted the Sartogas' motion for recusal. In their answering briefs, defendants argue that COAH's grant of substantive certification to West Paterson's Mount Laurel compliance plan included a factual finding that the Garret Pointe site is suitable for high density residential development, and that this finding is binding on the courts.
We conclude that COAH's grant of substantive certification to West Paterson's Mount Laurel compliance plan does not preclude plaintiffs' challenge to the validity of the ordinance rezoning the Garret Pointe site. We also conclude that plaintiffs raised contested issues of material fact as to the validity of the rezoning of the site for high density residential development. Accordingly, we reverse the summary judgment in favor of defendants and remand the case for trial. In view of this disposition, we have no need to consider plaintiffs' argument that the trial court made improper use of its own observations in inspecting the site. However, the court should be guided at trial by the principles set forth in Morris County Land Improvement Co. v. Township of Parsippany-Troy Hills, 40 N.J. 539, 548-49 (1963) ...