On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket Nos. L-1080-04 and L-1097-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2007
Before Judges A. A. Rodríguez and Collester.
The Township of East Greenwich (Township) and the East Greenwich Township Planning Board (Board) appeal from the November 1, 2006 final judgment in favor of Beazer Homes Corporation (Beazer), the contract purchaser of property owned by Robert Botto and Catherine Botto (Landowners), invalidating Township Ordinance 10-2004 and granting preliminary major subdivision approval. We affirm.
In November 2003, Beazer filed an application seeking major subdivision approval consistent with the Township Zoning Code in effect at the time. The objective was to subdivide the parcel owned by the Landowners into fifty-one lots. Beazer and the Landowners sought no variances because the Zoning Code permitted, as of right, the proposed subdivision. The application was deemed complete on March 19, 2004. Therefore, the Board had 120 days to make a decision. See N.J.S.A. 40:55D-61 (providing that failure of a planning board to act within the period prescribed "shall constitute approval of the application."); see also Neu v. Planning Bd., 352 N.J. Super. 544, 552-53 (App. Div. 2002).
In March 2003, the Township initiated an omnibus reexamination of its Master Plan, consistent with N.J.S.A. 40:55D-89. Contemporaneously, the Township had been in the process of revising its Master Plan along with the necessary modifications to its zoning code. The Board prepared ordinances consistent with the new Master Plan and forwarded them to the Township Committee, which is the Township's governing body.
At the April 27, 2004 meeting, the Township Committee adopted Ordinance 10-2004, which revised the zoning code in order to bring it into conformance with the Master Plan. At that same meeting, over eighty persons, including the Landowners, filed a petition objecting to Ordinance 10-2004. Specifically, the protest petition stated:
This petition and signatures hereunder represent opposition to the proposed Ordinance amending Title 16.60.040 of the Municipal Code of the Township of East Greenwich. Specifically, we oppose the amendment of minimum lot sizes within the RR district currently being debated by the East Greenwich Township Committee. If adopted, the proposed zoning changes will unnecessarily restrict our freedom to sell property and irrevocably cause undue economic hardship. I hereby affix my signature below as a landowner in the RR zone who is opposed to such zoning changes.
One of the central disputes in this appeal is whether this protest was to all of Ordinance 10-2004 as the respondents contend, or only the minimum lot requirement in the RR district, as the Township and Board contend.
The Township Solicitor determined that the petition was valid and binding, pursuant to N.J.S.A. 40:55D-63. Because the protest was valid, a supermajority of the Township Committee, sixty-six percent, was required to adopt Ordinance 10-2004. The Township Committee had adopted the ordinance by a vote of three to two when at least four affirmative votes were required. The Township Committee informed the residents that the ordinance, to the extent that it increased the minimum lot size, did not pass. However, the other portions of the ordinance did pass. Accordingly, the Township Committee referred the increase in minimum lot size back to the Board for further review and analysis. On June 11, 2004, the Township Committee adopted Ordinance 12-2004, which further modified the terms of the zoning code.
Thereafter, Beazer's application was finally heard. The Board denied the application because it failed to meet the new standards of Ordinance 12-2004.
Beazer filed an action in lieu of prerogative writs seeking a determination that Ordinance 12-2004 was invalid as a result of the Township's failure to comply with N.J.S.A. 40:55D-26 and -64. Shortly thereafter, the Landowners filed their own action in lieu of prerogative writs, alleging the same cause of action. These actions were consolidated.
Cross-motions for summary judgment were filed by all parties. The judge heard oral argument and ruled in favor of Beazer and the Landowners. The judge stated in his September 30, 2005 order that Ordinance 10-2004 in its entirety was invalid by virtue of the protest and the lack of approval by a supermajority. The judge remanded Beazer's application to the Board for consideration based on the zoning in effect when the application was originally submitted. The Township moved for a stay pending appeal. The judge denied the stay. Beazer moved to dismiss the appeal, contending the ...