On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-10864-99 and L-12068-99.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Grall and Riva.
Plaintiffs, owners of properties in the Township of East Brunswick, challenge the validity of zoning ordinances that downzoned the permitted densities in the district in which their properties are located from one unit per acre or per two acres to one unit per six acres, with cluster options ranging from one unit per three acres to one unit per three-and-a-half acres. We conclude that these ordinances are invalid as applied to plaintiffs' properties because the downzoning is not required to serve the stated purposes of the ordinances and does not reflect reasonable consideration of existing development in the areas where plaintiffs' properties are located.
East Brunswick is located in central Middlesex County. It consists of approximately 14,300 acres (twenty-two square miles). The municipality is traversed by the New Jersey Turnpike, running northeast to southwest, and by Route 18, running northwest to southeast.
Due to its proximity to the Turnpike and Route 18, East Brunswick has experienced significant growth since World War II. The 2000 census recorded a population of 46,756, which translates to a density of approximately 2129 persons per square mile.
More than two-thirds of East Brunswick, located to the north of the district in which plaintiffs' properties are located, is densely populated and built-out close to full capacity. The predominant use in this area is single-family residences at densities of three units per acre. In addition, there is a significant amount of commercial and light industrial development and multiple family dwellings in the vicinity of Route 18.
The district in which plaintiffs' properties are located, which East Brunswick has designated as a rural preservation (RP) zone, is less densely developed than the rest of East Brunswick, with a population of only 507 persons per square mile. The RP zone is bisected into two distinct halves by the New Jersey Turnpike.
The section to the east of the Turnpike encompasses 1639 acres (2.5 square miles). In this section, 1110 acres are publicly-owned or in church use, approximately 140 acres are developed with residential, commercial or industrial uses, and approximately 360 acres (the properties owned by plaintiffs) are essentially undeveloped and under farmland assessment. The dominant land use in the eastern section of the district is Jamesburg Park, which covers more than 1050 acres. The land outside Jamesburg Park is relatively level and has few environmental constraints. The major roads crossing the eastern RP district include Cranbury Road, Dunhams Corner Road and Fern Road. Portions of Cranbury Road are four lanes wide and the master plan calls for this road to be widened to four lanes over its entire length.
The section of the RP zone to the west of the Turnpike encompasses 2680 acres (4.2 square miles). Farrington Lake, a source of potable water for surrounding communities, forms the western border of this section and several stream corridors form its other edges. In this section of the RP zone, approximately 800 acres are in public or charitable use; 600 acres are in agricultural use; approximately 790 acres are developed with residential, commercial or industrial uses; and approximately 600 acres are undeveloped. Most residences are on lots of less than one acre.
Until 1999, East Brunswick permitted residential and other development in what is now designated the RP district at substantially greater densities than are permitted under the ordinances challenged in this litigation. In 1976, the eastern section of the district was zoned primarily for neighborhood business and industrial-commercial uses. In 1980, most of this area was rezoned residential, with a permitted density of one unit per acre. A cluster option allowed development on half-acre lots with a 25% open space set-aside and a twenty acre minimum tract. A portion of the area belonging to plaintiff Olga Clark was rezoned to permit 15,000 square foot lots, with a permitted density of three units per acre.
In 1986, as part of a consent order settling exclusionary zoning litigation, a ninety-eight acre portion of one property, owned by Heavenly Farms, Inc., was designated as an optional contingency zone for the construction of affordable housing, with a permitted density of seven units per acre. However, after the Council on Affordable Housing (COAH) granted substantive certification to East Brunswick's affordable housing plan, East Brunswick repealed the ordinance creating this special zone.
Prior to 1960, there was no zoning applicable to the western section of the RP zone. In 1976, East Brunswick zoned this area for residential use at a density of one unit per acre. In 1979, the municipality rezoned this area for a density of one unit per two acres. Cluster development, not to exceed five units per acre, was allowed as a conditional use.
In 1999, East Brunswick adopted the first of the series of ordinances challenged in this litigation. One ordinance merged the former separate zoning districts on the east and west sides of the Turnpike into a single RP district, and the second ordinance rezoned the newly constituted district for a density of one residential unit per six acres under conventional development, with cluster options discussed later in this opinion.
The adoption of these ordinances precipitated the filing of three actions in lieu of prerogative writs challenging their validity: one by Heavenly Farms, Inc., the owner of the largest parcel of undeveloped land on the east side of the Turnpike; a second by the owners of nearly all other undeveloped land in the eastern section; and the third by the owners of undeveloped land in the western section of the district. These actions were subsequently consolidated.
On plaintiffs' application, the trial court granted a preliminary injunction enjoining East Brunswick from enforcing these ordinances.
In 2001, the East Brunswick governing body adopted two new ordinances rezoning the RP district, which superseded the 1999 ordinances. These ordinances retained the six-acre zoning adopted in 1999 but increased the densities permitted under a number of cluster options. Cluster development at a density of one unit per three-and-one-half acres is permitted under these options, provided certain conditions are satisfied. Cluster development at a density of one unit per three acres is permitted if all open lands consist of prime agricultural soils and are dedicated to agriculture.
The trial court granted plaintiffs' motions to file amended complaints challenging the 2001 ordinances. After the completion of discovery, the case was tried over five days. During the trial, East Brunswick and Heavenly Farms entered into a settlement that dismissed the Heavenly Farms' complaint, subject to East Brunswick's purchase of its property.*fn1
Paul Phillips testified at trial as a land use planning expert on behalf of the plaintiffs who own properties on the east side of the Turnpike. Phillips described this section of the RP district as a mixed-use area with relatively intense development. He noted that the ordinances downzoning plaintiffs' properties list five purposes: protection of natural resources; maintenance of farmland; preservation of rural character; preservation of open space; and respect for the carrying capacity of the land. Phillips concluded that the ordinances would not reasonably achieve any of these goals.
Concerning protection of natural resources, Phillips stated that the eastern section of the RP district has no wetlands or floodplains, other than those near Ireland's Brook. Most wetlands lie outside of plaintiffs' properties in an area recently developed with single-family homes. There are few woodlands or topographic constraints, and the seasonal high water table depth is greater than six feet. For these reasons, Phillips concluded that the plaintiffs' properties on the east side of the Turnpike are suitable for residential development.
Phillips testified that there is no rural character left to preserve east of the Turnpike. He described the eastern RP zone as a growing suburbanized area and the area where plaintiffs' properties are located as an "isolated doughnut" surrounded on all sides by intense residential development, much of it on lots of only 15,000 square feet. There also is some multi-family housing, offices and commercial development along Cranbury Road near plaintiffs' properties.
Phillips acknowledged that the downzoning of plaintiffs' properties would create open space but expressed the opinion that the cluster options' set-aside requirements were unreasonable. Moreover, he concluded that the cluster density and open space set-asides were mathematically unachievable: according to Phillips, the minimum density that would be added under the cluster options would be closer to one unit per four or five acres than the one unit per three-and-a-half acres allowed by the ordinance.
Phillips explained that an area's carrying capacity relates to its ability to accommodate septic systems and to recharge underlying aquifers. Relying on the Middlesex County Soil Survey, Phillips stated that most of plaintiffs' land is suitable for septic systems, with only a small area along Ireland's Brook considered unsuitable. He pointed out that regulations promulgated by the Department of Environmental Protection (DEP) establish the lot size required to accommodate a septic system based on the soils underlying a property. Nothing in the DEP regulations supports the imposition of a six-acre minimum lot size based on septic system concerns. Moreover, there are sewer lines under the streets in front of plaintiffs' properties.
Phillips testified that the area where plaintiffs' properties are located is an area of moderate to high aquifer recharge potential. However, the methods for protecting aquifers in high recharge areas involve limitations on lot coverage and the establishment of stream corridor buffers, not the institution of large lot zoning. Phillips pointed out that the Middlesex County standard for protecting aquifer recharge in residential areas is a maximum lot coverage of 20%, which can be achieved on one-acre lots.
Phillips concluded that the 1999 downzoning of the eastern section of RP zone, as modified in 2001, is unreasonable because it reflects no consideration of the character of the zone or its development dynamics; bears no relationship to the area's actual physical and environmental qualities; and establishes no nexus between its goals and the results it would be likely to achieve. Therefore, the downzoning places an inequitable burden ...