April 9, 2008
PC AIR RIGHTS, LLC, PLAINTIFF-APPELLANT,
MAYOR AND COUNCIL OF THE CITY OF HACKENSACK, THE CITY OF HACKENSACK, AND THE BOARD OF ADJUSTMENT OF THE CITY OF HACKENSACK, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5350-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 17, 2007
Before Judges Payne, Sapp-Peterson and Messano.
Plaintiff PC Air Rights, LLC, is the contract purchaser of development rights, including air rights, located in and over certain property owned by the New York, Susquehanna and Western Railway Corporation (the Railroad) in Hackensack. Plaintiff's complaint in lieu of prerogative writs that named the mayor and council of Hackensack, the city of Hackensack (collectively, the City), and the city's Board of Adjustment (the Board) as defendants was tried without a jury over three days in July 2006. Plaintiff now appeals from portions of the trial judge's order of final judgment entered on August 6, 2006. We have considered the arguments plaintiff has raised in light of the record and applicable legal standards. We affirm in part the order under review, reverse in part, and remand for further proceedings consistent with this opinion.
The contract between plaintiff and the Railroad intended to convey development and air rights, together with easements in and over property designated on the City's tax map as Lots 9 and 10 in Block 627 (the property). The property is divided into three tracts, each described in the agreement as the "fee of air space over the [Railroad's] right of way" between Summit and Prospect Avenues (Tract A), between Prospect Avenue and Overlook Terrace (Tract B), and between Overlook Terrace and Second Street (Tract C). Prospect Avenue, a dedicated public street, intersects the property, separating Lot 10 (ostensibly Tract A) from Lot 9 (the other two tracts). The contract also included some land at grade level along American Legion Drive, a road that is, in part, adjacent to the right of way.
Under the City's zoning ordinance as it existed prior to June 2005, plaintiff's proposed development site spanned four zoning districts. Lot 10 was split between an R-1 zone (permitting one-family dwellings), and an R-3 zone (permitting R-1 uses, as well as high-density multi-family uses). Lot 9 was split between three zoning districts, with its major portion being in the same R-3 zone as Lot 10, and with two smaller portions, one being in an R-2A zone (permitting one and two-family dwellings and garden apartments), and one being in an R-3B zone (permitting R-2A uses and professional office buildings).
On December 15, 2003, plaintiff filed a site plan application with the Board seeking to construct a twenty-three-story residential apartment complex on the property, partially at grade level and partially astride and atop the Railroad's right of way. We need not go into great detail regarding what occurred after the initial application was submitted, but it shall suffice to say that plaintiff initiated litigation by way of a complaint in lieu of prerogative writs challenging the alleged denial of its development proposal.*fn1 While that suit was pending, on September 27, 2004, plaintiff filed a new site plan application that now sought approval of a mixed-use building consisting of office space and residential apartments, as well as an accompanying parking structure. On October 6, 2004, the City's code enforcement official, Joseph Mellone, again determined the revised application was incomplete citing nine "deficien[cies]."*fn2
We quote Mellone's letter at length because it provides the basis for much of what followed. First, Mellone concluded that a "[s]ub-division was required," and noted that plaintiff's plan failed to include a metes and bounds description and square footage of the property "located in each zoning district that is being used as a basis of the application." Second, Mellone noted that the proposed use, "[m]ultifamily [h]igh [r]ise," was not permitted in an R-1 zone. He also noted that "[t]he calculations for density included property located in a[n] R-1/R-2 District as well as the . . . right of way." Third, he claimed the proposed driveway aisle width was insufficient. Fourth, Mellone believed the proposed number of on-site parking spaces was insufficient and otherwise not fully detailed. Fifth, Mellone concluded the primary entrance to the project was on American Legion Drive, thus making this side the "front" of the project and requiring re-calculation of all setbacks. Sixth, he noted the floor plan for the parking garage was incomplete. Seventh, since the proposed balconies exceeded permitted sizes, Mellone advised that they needed to be included in all calculations regarding permitted setbacks. Eighth, Mellone observed that two rooms on the plan were not labeled. And lastly, Mellone noted that the "[u]se of a separate lot separated by a public street cannot be used as a basis of an application."
In a letter dated December 3, 2004, plaintiff responded with certain revisions and the report of its consulting engineers intending to address Mellone's letter. While these responses apparently resolved some of the disputed issues, on December 27, 2004, Mellone again wrote that the development application was still incomplete because plaintiff had not yet submitted "variance applications." On January 12, 2005, plaintiff appealed this determination to the Board pursuant to N.J.S.A. 40:55D-70(a) and (b).*fn3 On April 7, 2005, plaintiff submitted an amended notice of appeal, along with an amended site plan application.
The Board conducted hearings on plaintiff's appeal on May 18 and June 29, 2005, and voted at the second meeting to sustain Mellone's interpretation of the requirements of the zoning ordinance, thus, denying plaintiff's appeal. A memorializing resolution dated August 17, 2005 was adopted.*fn4
Other events were occurring in the interim that would impact plaintiff's development proposal. Pursuant to a recommendation of its planning board, on June 28, 2005 the City adopted an amendment to its zoning ordinance and district map (the 2005 ordinance). The new map now brought a large portion of the property, previously zoned R-3, into the R-2 zone that permitted only one and two-family homes. By extending the lines for the R-2 zone to include an area of the property along the Prospect Avenue corridor that otherwise remained bound on both sides by continued R-3 designations, the effect of the new designation was to necessitate a use variance for the development proposal because it no longer conformed with the new zone plan.
On July 28, 2005, plaintiff filed this complaint in the Law Division, alleging that: 1) the 2005 ordinance constituted "improper 'reverse spot zoning'"; 2) the City failed to comply with the notice requirements and procedures of the Municipal Land Use Law (the MLUL), N.J.S.A. 40:55D-1 to -129, when it enacted the 2005 ordinance; 3) the 2005 ordinance violated plaintiff's substantive due process rights; 4) the 2005 ordinance resulted in an "inverse condemnation" of plaintiff's property rights; and 5) the City's actions violated the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (the CRA). Accordingly, plaintiff sought a declaration that the 2005 ordinance was invalid, as well as compensation for the alleged taking of its property, injunctive relief, and monetary damages.*fn5
After the Board approved its memorializing resolution, plaintiff amended its complaint to add a seventh count alleging that the Board's denial of its appeal was arbitrary, capricious, and unreasonable. The matter proceeded to trial before the Law Division judge sitting without a jury.
Following trial, the judge issued a thoughtful and comprehensive written decision. He first found that the amended zoning ordinance constituted impermissible reverse spot-zoning, and concluded that "plaintiff [was] entitled to a judgment in its favor invalidating the designation of [the property] as R-2, and restoring the previous R-3 zone boundaries to where they existed before June 28, 2005." However, the judge also determined that those "portions of [the property] that [were] more remote from the Prospect Avenue corridor and that were previously zoned R-3B and R-2A shall continue to be designated as R-2 pursuant to the" 2005 ordinance. Based upon his ruling, the judge declined to decide plaintiff's substantive due process claim, finding it "not necessary."
The judge also denied plaintiff's claim that the entire 2005 ordinance should be set aside because it was inconsistent with the City's master plan. He recognized that the City "succeeded mightily, if somewhat imperfectly," in "creat[ing] consistency" between the master plan and the 2005 ordinance. He viewed the spot zoning of plaintiff's property to be "an isolated error of judgment that ought not have the global consequences urged by plaintiff." He did find, however, that the notice provisions of the MLUL, specifically N.J.S.A. 40:49-2.1, were not met, and so concluded the enactment of the 2005 ordinance was void. The judge stayed his ruling in this respect for sixty days to permit the City to "re-enact a procedurally-compliant comprehensive zoning ordinance if it wishes."*fn6
The judge denied plaintiff's request for relief under the CRA. He found that although defendants had erred by deciding to re-zone major portions of the property, their actions were neither egregious nor conscience-shocking, and could rather be described as "the tedious imperfections of local legislatures that are routinely corrected through conventional actions in lieu of prerogative writs." He added, "[w]hile deserving of reversal, they are not necessarily deserving of an award of damages." He dismissed plaintiff's claims under the CRA with prejudice.
The court also dismissed with prejudice plaintiff's "inverse condemnation claim" finding that even under the 2005 ordinance, plaintiff acknowledged that the property still possessed economically beneficial uses. Furthermore, since plaintiff was not the actual owner of the property, it could not claim any temporary taking of its property rights.
The judge then turned to plaintiff's challenge to the Board's denial of its appeal from Mellone's rulings. Specifically, plaintiff contended that three of Mellone's nine points remained in dispute as a result of the Board's determination. Citing plaintiff's trial brief, the judge enumerated these as 1) "whether the  proposed development created a subdivision; 2) whether the front of the proposed building was on Prospect Avenue; and 3) whether the site could not include Lots 9 and 10, which are separated by a public street."
Addressing the subdivision issue, the judge noted Mellone had not adequately explained why he believed one was needed, and that the Board "finessed" the issue by determining the subdivision was not necessary because Lot 10 could not be combined with Lot 9 for purposes of any application. However, the judge ruminated on whether a subdivision was required for "the conveyance of air space rights." Since neither side had addressed the issue, however, the judge declined to render an "advisory opinion" on the subject.
The judge also concluded that the issue of whether the front line of the property was on Prospect Avenue or American Legion Drive, and the implications for required setbacks that resulted from that decision, depended on whether the original zoning ordinance or the 2005 ordinance applied. Under the original ordinance, the judge noted the City "permitted developers to select their front yard on corner lots." However, under the 2005 ordinance, the front yard of the property was on American Legion Drive because it was the longer of the two lot lines.
As to the third disputed issue, the judge observed that Tract A was separated from Tracts B and C by Prospect Avenue. Because the tracts were not contiguous and never could be unless Prospect Avenue were vacated, the judge determined that "Tract A should not be included in any calculations for the development of Tracts B and C, which because they are not separated by a public street, may (theoretically) be built upon as a unit."
A written order memorializing the court's decision was filed on August 2, 2006. As to plaintiff's claims against the Board, the order specifically provided:
Judgment is entered in favor of  [p]laintiff and against the Board, in part, on the claims asserted in count seven of the complaint, and the Board's resolution . . . is null and void and of no effect to the extent that under the City's pre-2005 zoning ordinance it determines: (a) that  [p]laintiff is required to obtain subdivision approval for the proposed development . . . and (b) that the front of  [p]laintiff's proposed building . . . was on American Legion Drive and not Prospect Avenue[.]
This appeal ensued.
Plaintiff appeals only certain portions of the judge's order. It does not seek review of paragraph one of the order that granted plaintiff judgment on count one of its complaint and declared the provisions of the 2005 ordinance "incorporating within the R-2 zoning district the portion of Lot 9 . . . that before . . . was in the R-3 zoning district  null and void and of no effect," and restored that portion of Lot 9 to the R-3 zone. However, by also deciding that the other zoning changes contained in the 2005 ordinance could remain in place if properly "re-enacted" by the City, and since it was re-enacted, plaintiff argues the remedy the judge fashioned for the Board's improper reverse spot zoning was inadequate. Plaintiff contends that the judge should have restored all the zoning designations affecting its property to their pre-June 2005 designation, or else ordered all the property to be zoned R-3.
Plaintiff also appeals from paragraph three of the order to the extent that it implicitly affirmed the Board's resolution denying plaintiff the ability to combine Lots 9 and 10 for the purpose of calculating the minimum zoning requirements for its development. Lastly, plaintiff challenges paragraph five of the order that dismissed its remaining claims with prejudice.
We begin by setting forth the appropriate standard of our review. "When reviewing the decision of a trial court that has reviewed municipal action, we are bound by the same standards as was the trial court." Fallone Prop., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). Because of its "peculiar knowledge of local conditions," the Board's factual findings are entitled to substantial deference and are presumed to be valid. Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990) (quoting Medici, v. BPR Co., 107 N.J. 1, 23 (1987)); see also Fanelli v. City of Trenton, 135 N.J. 582, 589 (1994); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965).
The Board's conclusions of law, however, are subject to de novo review. Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993); see also Cherney v. Matawan Boro. Zoning Bd. of Adjustment, 221 N.J. Super. 141, 144-45 (App. Div. 1987) (citations omitted) (holding the interpretation of an ordinance against undisputed facts is a judicial function). However, "although we construe the governing ordinance de novo, we recognize the board's knowledge of local circumstances and accord deference to its interpretation." Fallone Prop., supra, 369 N.J. Super. at 562. Whether a municipal ordinance violates the MLUL, however, is a "purely legal issue," and therefore appropriately decided by the court. Tennis Club Assoc. v. Planning Bd. of the Twp. of Teaneck, 262 N.J. Super. 422, 432 (App. Div. 1993).
Our review must also acknowledge the trial judge's factual findings and credibility determinations. These are accorded great deference and typically will not be disturbed absent a clear showing that they lack credible support in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974). Legal determinations made by a trial court, however, are accorded no such deference and are reviewed de novo. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
We first consider plaintiff's claim that the "the trial judge erred when he failed to invalidate the entire R-2 zoning reclassification of the property." Plaintiff argues the judge "should have applied the remedy suggested by [its] expert, which would have rezoned the entire property R-3 to avoid the split lot issue. In the alternative, [the judge] should have restored all of the pre-2005 zoning designations that applied to the entire [p]roperty." Although defendants seemingly argue that the judge's determination that plaintiff's property was spot-zoned should be reversed, none of them filed a cross-appeal; the issue, therefore, is not appropriately before us. Seacoast Builders v. Jackson, 363 N.J. Super. 373, 381-82 (App. Div. 2003). Thus, we consider only the propriety of the judge's remedy. In this regard, the City contends that the record amply supports the judge's conclusion that only a portion of Lot 9 needed to be restored to its pre-2005 zoning designation and that the balance of the lot could remain as re-zoned under the 2005 ordinance.
Spot zoning occurs when a municipality seeks to relieve a particular lot of the burden imposed by its zoning classification so as to benefit the lot owner or permit an incompatible use. Cresskill v. Dumont, 15 N.J. 238, 240-241 (1954). It is essentially an invalid attempt to grant a variance. Id. at 241. "Reverse spot-zoning" seeks to prevent a permitted use of a property by singling out a particular lot and affording it less favorable treatment than its neighbors. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 272 N.J. Super. 1, 13 (App. Div. 1994), aff'd, 140 N.J. 366 (1995)(Manalapan I).
Severing only that portion of a comprehensive zoning ordinance that is invalid, and allowing the remainder to stand, has been recognized as an entirely permissible remedy. For example, in Manalapan I, supra, we considered a challenge to the ordinance's definition of "building materials" as too broad. We noted that "even if the definition of 'building materials' were found to be too broad, this would not result in the invalidation of the entire amended zoning ordinance." Rather, any portion of the definition "found to be too broad could be severed, thereby preserving the remainder of the ordinance." Manalapan I, supra, 272 N.J. Super. at 14.
It is unclear whether the 2005 ordinance contained an express severability provision or not, and the trial judge did not consider the issue in rendering his decision. Additionally, we do not know if the re-enacted ordinance contains such a provision. However, we conclude that the lack of any express severability provision is immaterial under the facts of this case.
The existence of a severability clause does not compel severability, but rather creates a presumption that each section of a comprehensive ordinance is severable. Brunetti v. New Milford, 68 N.J. 576, 600-01 (1975). Conversely, the absence of a severability clause does not mean the provisions of the ordinance are not severable because severability is ultimately a question of legislative intent. "The essential inquiry is whether the lawmaking body designed that the enactment should stand or fall as a unitary whole . . . . It is a question of interpretation and of legislative intent whether the particular provision is so interwoven with the invalid clauses as that it cannot stand alone." Inganamort v. Fort Lee, 72 N.J. 412, 422 (1977) (quoting State v. Lanza, 27 N.J. 516, 527 (1958)).
The record fully supports the conclusion that the City intended that the balance of its re-designated zoning map should stand in the event a successful challenge was brought to any particular portion of the ordinance. The trial judge noted the development of the City throughout the 1990s led to disparities between the City's 1990 master plan, the then-current zoning ordinance, and the reality on the ground. This in turn led to the formulation of a new master plan that the City adopted in 2001. The City then embarked on a multi-year effort that predated plaintiff's development application. The 2005 ordinance implemented the 2001 master plan across the entire City and was not limited to targeting a single parcel of land.*fn7
Plaintiff does not dispute any of these findings. Instead, plaintiff argues that based upon out-of-state precedent, the pre-2005 zoning should have been restored; alternatively, based upon the opinion of its expert, all of Lot 9 should be rezoned as R-3.
We find none of the out-of-state precedent persuasive, particularly in light of the relevant precedent we have cited above. Plaintiff's request to revert to the pre-2005 zoning map is nothing more than a transparent effort to garner the applicability of the more favorable R-2A and R-3B zones to a portion of Lot 9 without any legal support.
As to the opinion of plaintiff's expert, it essentially urged the re-zoning of the entirety of Lot 9 to R-3 because 1) leaving the 2005 ordinance's designation of a portion of the lot as R-2 would result in a split lot, and 2) the new R-2 zone included garden apartment buildings in close proximity to Lot 9, thus immediately resulting in the creation of non-conforming uses. However, there was ample proof in the record indicating that the new R-2 designation that encompassed a portion of Lot 9, ostensibly Tract C, was not inconsistent with existing uses or with the City's overall desire to bring the property in conformance with the master plan, which designated the area for low-density development. Testimony in the record from the City's expert, and from the judge himself as he recited the observations he made during the viewing he conducted at the site, sufficiently demonstrate factual support for the conclusions the judge reached.
As for plaintiff's suggestion that because Lot 9 will continue as a split lot the entire lot should be judicially-zoned as R-3, we fail to see how this fact, standing alone, provides any basis to overturn the City's decision. Lot 9 was a split lot before the 2005 ordinance. In short, we find no basis to reverse.
Plaintiff next argues that the trial judge erred in failing to consider whether the 2005 ordinance violated plaintiff's substantive due process rights. Although he concluded the ordinance, as applied to a portion of the property, constituted reverse spot zoning, the judge declined to address the substantive constitutional question, finding it to be unnecessary.
The Supreme Court recently noted that "courts should not reach a constitutional question unless its resolution is imperative to the disposition of litigation." Randolph Town Ctr., L.P. v. County. of Morris, 186 N.J. 78, 80 (2006). We agree with the trial judge that resolution of plaintiff's constitutional claim was unnecessary in light of 1) the declaration that the property was the subject of reverse spot zoning; 2) the reversal of the 2005 ordinance's zone designation; and 3) the lack of any appeal of this part of the order by defendants. To the extent plaintiff's claim rests upon the continued application of the 2005 ordinance as re-enacted to a portion of the property, for the reasons expressed above, we find no merit to the argument.
In reality, plaintiff's reason for pressing the constitutional substantive due process claim is stated succinctly in its brief. "The [trial] court should have addressed this constitutional issue in the context of this case . . . because the plaintiff asserts claims under the [CRA]." Because we agree with the trial judge that plaintiff failed to prove a violation of the CRA, we turn to that issue to resolve both claims.
The CRA, enacted in 2004, provides that any person deprived of any federal or state Constitutional right or privilege by a person acting under color of law may bring a civil action for damages. N.J.S.A. 10:6-2(c). The CRA was intended to create a state analog to 42 U.S.C. 1983. Martucci, When Should the Victors Receive the Spoils?: Determining the Proper Threshold for Attorney Fee Awards and the Prevailing Plaintiff Standard Under the New Jersey Civil Rights Act's Fee-shifting Provision, 30 Seton Hall Legis. J. 163, 166 (2005). Although the cause of action created by the CRA is statutory, "the rights protected by the CRA also emanate from the federal or state constitutions." Owens v. Feigin, 394 N.J. Super. 85, 96 (App. Div.), leave to appeal granted, 192 N.J. 473 (2007).
As previously noted, the trial judge deferred consideration of plaintiff's separately presented substantive due process claim. Nonetheless, he did consider plaintiff's CRA claim as one founded upon an allegation of a substantive due process violation. The Supreme Court has noted that substantive due process protections prohibit "certain arbitrary government actions 'regardless of the fairness of the procedures used to implement them.'" Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 364, cert. denied, 519 U.S. 911, 117 S.Ct. 275, 136 L.Ed. 2d 198 (1996)(quoting Daniels v. Williams, 474 U.S. 327, 337, 106 S.Ct. 662, 667-668, 88 L.Ed. 2d 662, 672 (1986)). Substantive due process "does not protect individuals from all governmental actions that infringe liberty or injure property in violation of some law"; rather, substantive due process prohibits those government actions that "shock the conscience or otherwise offend ... judicial notions of fairness ... [and that are] offensive to human dignity." Rivkin, supra, 143 N.J. at 366 (citations omitted).
The trial judge, relying upon Rivkin, quite properly determined that although the actions of the City were wrong, they were not particularly conscience-shocking or egregious. Plaintiff argues a more expansive approach to substantive due process claims ought to be adopted, contending that essentially any arbitrary and irrational decision made by government is potentially a violation of substantive due process rights. We conclude, however, that the Rivkin court essentially rejected such an approach. Id. at 368-369. Thus, we find no basis to reverse the trial judge's dismissal with prejudice of plaintiff's substantive due process claims and its CRA claim.
With respect to plaintiff's inverse condemnation claims, we affirm the trial judge's dismissal of them with prejudice substantially for the reasons expressed in his written decision.
We next consider plaintiff's appeal of that portion of the order that reversed in part, and affirmed in part, the Board's resolution denying plaintiff's appeal. Before we turn to the merits, we must initially note that our consideration is limited solely to the one issue on appeal; that is whether the Board's conclusion that plaintiff "was not entitled to treat Lots 9 and 10 jointly for purposes of any requirements of the [z]oning [c]ode or necessary variances" was arbitrary, capricious, and unreasonable.
The trial judge declared that the portion of the Board's resolution that implied a subdivision might be necessary was null and void. The judge also concluded that the portion of the Board's resolution that implicitly adopted Mellone's conclusion that the front of the building was on American Legion Drive was "null and void" under the pre-2005 ordinance. Defendants have not cross-appealed; therefore, those issues are not before us.
We note, however, that the resolution does not explicitly provide that a subdivision was required, and, to this extent, the judge's decision was an advisory opinion that requires no review from us. In order to determine whether his conclusion regarding the front of the building is valid under the re-enacted ordinance, we would be required to examine the ordinance as adopted, and we have not been supplied with same. More importantly, we would be required to render an advisory opinion, something we are loath to do. DeBenedictis v. State, 381 N.J. Super. 233, 240 (App. Div. 2005).
Turning to the substance of plaintiff's claim, it first argues that the Board's resolution "does not adequately set forth the Board's own reasons for denying [its] appeal." We find this aspect of plaintiff's argument to be of insufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(1)(E).
Plaintiff further argues that "the trial judge and the Board erred as a matter of law when they denied  plaintiff's appeal on the theory that Lots 9 and 10 could not be included in  plaintiffs' development application." But this characterization of the Board's resolution and the judge's decision misses the mark. It was not the inclusion of the two lots in one application that was, in and of itself, objectionable. Rather, what the judge determined to be improper was plaintiff's desire to utilize the area of both lots for purposes of calculating whether it complied with the maximum standards of the zoning ordinance, or whether it was required to seek a variance from those standards.
At the May 18, 2005 hearing on plaintiff's application, its expert, Richard Adelsohn, testified that the intent was to undertake a transfer of "the development rights from the east side [of Prospect Avenue] to the west side."*fn8 However, there remained some confusion over whether plaintiff intended Lot 10 to be included in the application at all. Ultimately, we discern from the transcript that plaintiff intended to include Lot 10 in the calculations determining the area of lot coverage permitted under the zoning ordinance, but not for purposes of calculating the application's density figures. The Board's resolution reflects this factual finding.
In addressing Adelsohn's testimony, the Board's resolution noted that the City had never adopted "an ordinance to provide for 'transfer of development rights[.]'"*fn9 We agree that this failure made any intended transfer of development potential, as defined by N.J.S.A. 40:55D-4, from Lot 10 to Lot 9 impermissible. As we recently noted in Builder's League of South Jersey, Inc. v. Twp. of Franklin, 395 N.J. Super. 46, 58 (App. Div. 2007), a municipality's desire to develop a transfer of development rights program must strictly comply with statutory authority.
However, in its brief, plaintiff asserts that "the Board's contention that  [p]laintiff's development application calls for the transfer of development rights raises a false issue." Instead, plaintiff limits its argument before us to examination of the conclusion reached by the trial judge that because Lots 9 and 10 are separated by a public street, Prospect Avenue, they are not contiguous and therefore cannot be the subject of one application for site plan approval. In this regard, plaintiff contends 1) that the MLUL does not contain any requirement of contiguity for all lots contained in a comprehensive development application, and 2) alternatively, that the lots are actually contiguous because under well-recognized principles, the lot lines of Lots 9 and 10 extend to the middle of Prospect Avenue.
We begin by noting that "lot" is a defined term under the MLUL and that both Lots 9 and 10 standing alone fit the definition. Pursuant to N.J.S.A. 40:55D-4, a lot is "a designated parcel, tract or area of land established by a plat or otherwise, as permitted by law and to be used, developed or built upon as a unit." As defined by the MLUL, a "street" is "any street, avenue, boulevard, road, parkway, viaduct, drive or other way (1) which is an existing State, county or municipal roadway, or (2) which is shown upon a plat heretofore approved pursuant to law, or (3) which is approved by official action as provided by this act, . . . and includes the land between the street lines[.]" N.J.S.A. 40:55D-7 (emphasis added). In our opinion, this examination of the statutory definitions defeats plaintiff's alternative argument; Lot 9 is separated from Lot 10 by Prospect Avenue and the two are definitely not contiguous.
Plaintiff's main argument that the site plan application can contain more than one lot, however, requires some greater analysis. We first turn to several of the definitions contained in the MLUL. An "application for development" includes "all accompanying documents required by ordinance for approval of a . . . site plan[.]" N.J.S.A. 40:55D-3. Under the MLUL, a site plan is "a development plan of one or more lots[.]" N.J.S.A. 40:55D-7 (emphasis added). Nothing in the provision of the MLUL that defines the mandatory elements of a site plan ordinance intimates that an application cannot be made for more than one lot, or that the lots need be contiguous. N.J.S.A. 40:55D-41. Those sections of the MLUL that permit the inclusion of other requirements in the site plan ordinance, in the municipality's discretion, similarly do not limit an application to contiguous lots. See N.J.S.A. 40:55D-39 and -42. None of the parties has brought to our attention any such limitation in Hackensack's ordinance.
Therefore, we find no reason why plaintiff could not submit a single development application for site plan approval that included two non-contiguous lots. However, that does not end the inquiry because plaintiff seeks the ability to aggrandize the areas of Lots 9 and 10 for purposes of calculating compliance with the zoning ordinance's restrictions.
N.J.S.A. 40:55D-62 grants the municipality the power to zone. Any zoning ordinance may 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.
[N.J.S.A. 40:55D-65(b) (emphasis added).]
Therefore, the question of whether Lot 10 can be included in any calculations for purposes of determining compliance with, or variance from, the zone's restrictions on coverage must be answered by reference to the language of the ordinance itself.
Unfortunately, we have not been provided with a complete copy of either the 2005 ordinance as re-enacted, or its predecessor. From the portions of the 2005 ordinance included in the record, it would appear that the City imposed maximum coverage restrictions on a per lot basis. If this is so, then plaintiff's site plan needed to be judged against those standards, presumably requiring a coverage variance for Lot 9, but not one for Lot 10.*fn10
In any event, we cannot decide the issue on the record presented. We therefore must reluctantly remand the matter to the trial judge for a determination as to 1) whether the City's ordinance permitted, in the first instance, the aggrandizement of lots for purposes of calculating compliance with the restrictions applicable to any zone; 2) whether the maximum coverage restrictions contained in the ordinance were based upon a per lot calculation; and 3) whether variances from the zoning ordinance's provisions were required. In the event the trial judge believes a remand is necessary to the Board, he may in the exercise of his discretion, order that.
We refuse to consider plaintiff's last claim that the adoption of the 2005 ordinance failed to meet the procedural requirements of the MLUL. The trial judge agreed with plaintiff's contention, in part, and therefore declared the ordinance to be null and void, though he stayed his ruling to allow re-enactment of the ordinance. We have no way of knowing whether the City's subsequent re-enactment presented the same alleged procedural deficiencies as before. We therefore consider any comment we might make as to the trial judge's rulings on plaintiff's other procedural claims to be purely advisory in nature and without any effect. We have repeatedly declined to engage in such decision making in the abstract. DeBenedictis, supra, 381 N.J. Super. at 240.
Affirmed in part, reversed in part and remanded. We do not retain jurisdiction.