On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-5549-00.
Before Judges Wallace, Jr., Carchman and Wells.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Rumson Estates, Inc. appeals from a judgment of the Law Division dismissing its complaint in lieu of prerogative writs and upholding the validity of defendant Borough of Fair Haven's zoning ordinance providing for maximum habitable floor area. We agree and conclude that the ordinance represents an appropriate exercise of municipal authority under N.J.S.A. 40:55D-65. Accordingly, we affirm.
The facts are not in significant dispute. Plaintiff was the owner of undeveloped property containing approximately 27,000 square feet. It proposed to subdivide the property into three lots located in the Borough, to be identified as Lots 75, 76, and 77 in Block 77 on William Street. Each of these proposed lots would have identical dimensions of 50 foot frontage by a depth of 181.5 feet for a total area of 9,066.4 square feet per lot.
The Borough is a small municipality approximately one square mile in area and inhabited by approximately 5,700 residents. It is primarily residential and almost entirely developed. Recent development in the Borough has consisted mainly of single lot construction or small subdivisions similar to plaintiff's proposed subdivision.
In 1999, as part of a comprehensive revision of its development regulations, the Borough revised the zoning of Block 77 on William Street from R-7.5 (requiring 60 feet frontage and a minimum lot area of 7,500 square feet) to R-5 (requiring 50 feet frontage and a minimum lot area of 5,000 square feet). The R-5 zone also specified a maximum habitable floor area ratio of 0.40. The Borough's zoning ordinances, in addition to floor area ratios, provides for maximum habitable floor areas. The maximum habitable floor area in the R-5 zone is 2,200 square feet. While each of plaintiff's proposed lots were conforming as to minimum area size, the proposed residences of approximately 2,500 square feet exceeded the maximum habitable floor area. Absent the maximum floor area limitation, a residence of approximately 3,600 square feet could be erected within the limitations of maximum floor area ratio.
Plaintiff applied for a subdivision and variances before the Fair Haven Planning Board so that it could build homes that exceeded the maximum habitable floor area on all three of its lots. The planning board denied plaintiff's application. Plaintiff then filed an action in the Law Division challenging the validity of the ordinance, the denial of the subdivision and the denial of the variance from the maximum floor area zoning requirements. During the pendency of the Law Division action, the planning board granted the subdivision. Judge Lawson dismissed the challenge to the ordinance and further concluded that plaintiff could still proceed before the zoning board for a variance pursuant to N.J.S.A. 40:55D-70(d). This appeal followed.
In challenging the validity of the ordinance, plaintiff asserts that the Borough exceeded its authority under N.J.S.A. 40:55D-65 in enacting "a maximum floor area ordinance with no link to the size of the lot." Plaintiff focuses on other provisions of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55- D-1 to -129, specifically defining how floor area ratio is to be calculated. See N.J.S.A. 40:55D-4. Our reading of the operative enabling section leads us to a different conclusion.
N.J.S.A. 40:55D-65 states in pertinent part:
b. Regulate the bulk, height, number of stories, orientation, and size of buildings and the other structures; the percentage of lot or development area that may be occupied by structures; lot sizes and dimensions; and for these purposes may specify floor area ratios and other ratios and regulatory techniques governing the intensity of land use and the provision of adequate light and air, including, but not limited to the potential for utilization of renewable energy sources. [emphasis added.]
The Borough urges that the statute permits the use of such maximum floor area restrictions as a means of appropriately diversifying housing stock and to permit maximum square foot limitations to be based solely on floor area ratios would "be relinquishing the determination and control as to the diversity of its housing stock to developers." The Borough also claims that the purpose of the floor area limitation is to ensure that appropriately sized residences are built on the lots in this particular zone so as to allow for reasonably priced homes in the Borough. In challenging the validity of the Borough's ordinance, plaintiff claims that the ordinance is arbitrary and capricious. Plaintiff, relying on Home ...