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Cotler v. Township of Pilesgrove

June 6, 2007

JOSEPH COTLER, MAXINE COTLER AND RICHARD PIERSON, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF PILESGROVE, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Salem County, Docket No. SLML-233-05.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 8, 2007

Before Judges Skillman, Lisa and Holston, Jr.

This appeal involves the notice requirements for adoption of a zoning ordinance under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99. N.J.S.A. 40:55D-62.1 provides that any owner of property located within 200 feet of a proposed change in zoning classification or boundaries must be given personal notice of the amended zoning ordinance, unless the zoning change was "recommended in a periodic general reexamination of the master plan[.]" We conclude that personal notice of the amended zoning ordinance challenged in this litigation was not required, because even though the changes in zoning classifications and boundaries resulting from that amendment were not specifically recommended in a reexamination report, they resulted from a periodic general reexamination of the master plan. N.J.S.A. 40:49-2.1(a) requires the published notice of a proposed zoning ordinance to contain "a brief summary of the main objectives or provisions of the ordinance[.]" We conclude that the published notice of the amended zoning ordinance challenged in this litigation did not comply with this requirement because it did not contain sufficient information concerning the nature and scope of the changes in zoning that would result from its adoption.

Pilesgrove Township is a rural, agricultural municipality in north-central Salem County with a total land area of approximately thirty-five square miles. Plaintiffs Joseph and Maxine Cotler own a 57.61 acre farm and plaintiff Richard Pierson owns an 81.93 acre farm in the Township.

Before adoption of the amended zoning ordinance challenged in this litigation, plaintiffs' properties were located in the single-family residential (SR) district of the municipality, in which one acre residential lots are a permitted use. However, as a result of the challenged rezoning, plaintiffs' properties are now located in an agricultural retention (AR-2) district, in which the minimum permitted lot size is two acres.

The planning process that culminated in adoption of the amended zoning ordinance started with the Township Planning Board's reexamination of its master plan and land development regulations. After receiving a draft report from its planner and conducting a series of work sessions, the Board adopted a resolution on January 16, 2002 approving the reexamination report. The resolution stated that although the Township's zoning ordinance was in "general conformance" with the land use element of the master plan adopted in 1994, the reexamination report had "identified a number of specific issues which require attention by the Township Planning Board to refine and/or reaffirm Township planning objectives, policies, and standards[.]"

The specific issues referred to in the reexamination report included updating the boundaries between the SR and rural residential (RR) districts and enhancing the buffers between the SR and the RR and AR-2 districts. The report also recommended that "lot size in the SR district be increased" in certain circumstances. To implement these recommendations, the Board's resolution recommended that "an update to the Township Master Plan and Land Use Ordinance be undertaken to consider the specific issues identified in the Reexamination Report[.]"

The update of the land use element of the master plan recommended in the reexamination report began shortly after the adoption of the report but was not completed until early 2005. The Planning Board then conducted two days of public hearings on the proposed revised land use element, and on February 16, 2005, the Board adopted a resolution approving the revision. This revision stated that "all boundary and classification changes to the zoning ordinance that relate to the proposed changes in the Land Use Plan are the result of a periodic general reexamination of the Master Plan pursuant to N.J.S.A. 40:55D-62.1." The revision noted that the recommended changes included a reduction in size of the SR district in the northeast corner of the municipality where plaintiffs' properties are located and creation of an AR-2 district with a minimum two acre lot size. The revised land use element also contained maps showing the locations of each of the zoning districts.

Following its adoption of the new land use element, the Planning Board prepared an amended zoning ordinance to implement its recommendations. The ordinance provided for the reduction in size of the SR district and the creation of the AR-2 district, in which plaintiffs' properties are now located, as recommended in the revised land use element.

The Planning Board advised the Township Committee that "the proposed ordinance is consistent with the Township Master Plan . . . and that it will implement key provisions of the recently adopted Land Use Plan element." The Board also advised the Committee that "all of the changes to zoning district classifications and boundaries contained in proposed Ordinance No. 05-09 are recommended in the Planning Board's most recent periodic general re-examination of the Pilesgrove Township Master Plan pursuant to N.J.S.A. 40:55D-89[.]"

On June 30, 2005, the Township Clerk published notice of the second reading of the proposed amended zoning ordinance and the scheduled public hearing. No personal notice of the proposed ordinance was given to plaintiffs or other property owners. The ...


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