On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3991-01 and L-3938-01.
Before Judges Skillman, Carchman and Wells.
The opinion of the court was delivered by: Wells, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Middletown Township, defendant, adopted an amended zoning ordinance over a protest by a vote of its five member governing body of three to one, with one member disqualifying himself. The protesting property owner, Mountain Hill, LLC, which had proposed a substantial development plan for the lands affected by the amendment sued Middletown, claiming in the first count of a four count complaint that the amendment did not garner the two-thirds majority of votes (four votes) required under N.J.S.A. 40:55D-63. Heritage Hills Civic Association (Heritage Hills), a group of homeowners in the vicinity of Mountain Hill's property and who opposed Mountain Hill's development plan, also sued Middletown on various theories relating to the ordinance among them that the ordinance had not been passed in accord with "statutory and municipal procedural requirements".
The two cases were consolidated in the trial court and were heard on motion for summary judgment. The judge in a written letter opinion agreed with Mountain Hill with respect to its first count on the issue of the number of votes required. She, therefore, granted summary judgment in favor of Mountain Hill, invalidated the ordinance and declared that judgment final. She then directed that the Heritage Hills suit "will proceed independently." Middletown filed an appeal. Notwithstanding the judge's order and contrary to the allegation in its complaint, Heritage Hills also appealed and filed a brief arguing, as did Middletown, that the ordinance had been properly passed. We consolidated the appeals. *fn1
Middletown Township is a large suburban municipality located in northeast Monmouth County. Middletown is governed by a five member committee pursuant to a special charter enacted by the Legislature in 1971. Mountain Hill, LLC is the owner and/or contract purchaser of a tract of approximately 135 acres, mostly vacant, with extensive frontage along northbound State Highway 35 in Middletown.
In 1993, the Middletown Township Planning Board adopted a master plan which recommended that a substantial portion of Mountain Hill's property be zoned for mixed uses. In 1994, the Township Committee re-zoned 85 acres of Mountain Hill's tract from business and industrial uses to the newly created PD (planned development) zone, which allowed mixed uses. The balance of the tract, 50 acres, remained in the M-1 (light industrial) zone. No amendments to the PD zone were enacted by the Township Committee from 1994 through 2000.
In September 2000, Mountain Hill filed an application with the Middletown Township Zoning Board seeking a use variance for the 50 acres still zoned industrial to allow Mountain Hill to develop a commercial/residential project on its entire 135 acre tract. The project was named the "Middletown Town Center." The proposal generated a substantial public controversy.
In March 2001, the Township Committee introduced Ordinance 2001-2632 which sought to amend and "down-zone" the existing PD zone, substantially reducing what Mountain Hill could build on its property. Mountain Hill filed a valid protest under N.J.S.A. 40:55D-63 objecting to the proposed zoning ordinance. At the June 4, 2001 Township meeting, the proposed ordinance was discussed. One of the members recused himself because of a conflict of interest. During the meeting, one of the four remaining members stated that "[f]or anything to pass here, it's going to require all four of us. All right. Just understand that. Anyone of us can block this whole ordinance." The Township's attorney did not comment on this statement. The ordinance was ultimately rejected by the Township Committee.
On June 18, 2001, the Township Committee proposed Ordinance 2001-2644, which also sought to "down-zone" the PD zone. Mountain Hill again filed a valid protest under N.J.S.A. 40:55D- 63 objecting to the proposed ordinance. At the public hearing on July 2, 2001, the Township's attorney announced that one of the five committee members present, Mr. Brodsky, had "recused himself with regard to this matter, as he has in the past. . . ." He then advised the Township Committee that "if a member has recused themselves, they are, in essence, resigned from the Committee for purposes of this application which means that effectively there are four, all the members of [the] governing body are four." Accordingly, he concluded that three affirmative votes was needed to carry the ordinance under N.J.S.A. 40:550-63. Following that discussion the vote was taken, with three votes in the affirmative and one vote in the negative, and the ordinance declared adopted.
The lawsuits followed. In her written decision concluding that Ordinance 2001-2664 had not been validly adopted because it had not received the required affirmative vote of "two-thirds of all the members of the governing body," Judge Peskoe wrote:
Statutory construction principles require that this court be bound by the plain meaning of the text. "All the members of the governing body" does not mean "all members of the governing body who have no conflict and are qualified to vote." This court concludes, therefore, that "the number of persons who constitute all the members of the governing body" of Middletown Township is not reduced because of the disqualification of one of the Committee members. Two-thirds of the mem-bership is to be computed in light of a five-member committee. To satisfy the statutory mandate, four affirmative votes are required.
. . . . Clearly, the statute is intended to protect property owners who are applicants or neighbors from casual changes in applicable ordinances. That is, ordinances that would effect "a change in the classification or boundaries of a zoning district." When such a change is proposed other than "recommended in a periodic general re-examination of the master plan by the planning board" notice of the hearing on the amendment is required to be given "to the owners of all real property . . . within 200 feet in all directions of the boundaries of the district, and, in the case of a boundary change, in the State within 200 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing." N.J.S.A. 40:55D-62.1. . . . The purpose of the statute is "to protect the interests of property owners in the stability and continuity of zoning regulations.["] Levin v. Township of Parsippany-Troy Hills, 82 N.J. 174, 180 (1980). There has been some suggestion that the "rule of necessity" should be applied here. That rule would allow a ...