On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-3594-01 and L-3597-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 27, 2008
Before Judges Cuff, Lisa and Lihotz.
On December 19, 2002, the Township Committee of the Township of Hopewell (Township Committee and the Township) adopted a new zoning Ordinance, No. 02-1268, which established a Mountain Resource Conservation zoning district (MRC) and Valley Resource Conservation zoning district (VRC). Among other things, the Ordinance imposed minimum lot requirements of fourteen and six acres, respectively, for properties located in the two districts. On appeal, plaintiffs challenge the down-zoning accomplished by the creation of the MRC and VRC districts. Plaintiffs assert that the down-zoning was driven entirely by water resource concerns that were unfounded, ill-founded and beyond the zoning authority of the Township. Following an eleven day trial, Judge Feinberg held that the challenged provisions were a valid exercise of the Township authority under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. We affirm.
The Township, located in the northwest corner of Mercer County, is bounded to the northwest by West Amwell and East Amwell Townships in Hunterdon County, to the northeast by Montgomery Township in Somerset County, to the south by Lawrence Township, and to the southwest by Ewing Township, both in Mercer County. Two boroughs, Pennington and Hopewell, are located within the Township's fifty-eight square miles.
The Township is equally divided between the Raritan and Delaware River watersheds. High quality headwaters from several important streams and rivers are located in the Township. Because these headwaters are within the Township's borders, the Township cannot rely on them for drinking water.
The Township also has twenty-four types of soils. Several soil types have severe limitations relative to the disposal of septic system effluent. Other soils are of prime importance to the State and are called Prime Farmlands.
Based on the Township's 1995 property tax map, it is composed largely of farm land (50%), residential uses (20%), public uses (17%), and vacant or open land. A 1995 land use and cover map disclosed that 31% of the land is devoted to agriculture, 39% is forested, 19% is residential (i.e., urban), 2% is water, and 9% is wetlands. This pattern existed at the time the 2002 Master Plan and Ordinance 02-1268 were adopted.
In other words, forests and farmlands account for about 70% of the Township.
The Township is not uniform in height or geology. Portions of the Township to the northwest are mountainous and include the Sourland Mountain and Baldpate Mountain. This area, which mostly corresponds to the MRC district, is largely forested and contains "high priority habitats." Almost 10% of the MRC district is wetlands. It is difficult to build septic systems beneath the uneven terrain of the MRC district because of the need for level surfaces. Further, given the mountainous terrain, construction of sewer and public water infrastructure would be very expensive.
Agricultural uses are concentrated in the Township's valley areas, which correspond with the VRC district. In fact, 40.6% of the VRC district contains agricultural fields, while 8.3% of the VRC is wetlands.
Before Ordinance 02-1268 was adopted, the land now within the VRC district permitted maximum four-acre residential lots, while the land now within the MRC district permitted maximum six-acre residential lots. Combined, the VRC and MRC constitute approximately seventy-eight percent of the Township's land area, and lack public water and sewer infrastructure. In fact, there is no residential water or sewer in the Township, except in a portion of the homes located in the southeastern area of the Township and a small area near Washington Crossing State Park. Stated differently, all but approximately 3500 residents obtain their water from wells and dispose of their waste through septic systems.
The purpose of the MRC and VRC districts is to implement the goals and objectives set forth in the 2002 Master Plan.
Purpose. The purpose of these Districts is to implement the goals, objectives and principles of the 2002 Master Plan relative to protecting environmentally sensitive areas, recognizing development capacity limitations established by natural resource capabilities, maintaining the rural character and providing for sustainable development. These Districts have been designed to comprehensively address the interrelated goals of protecting groundwater quantity and quality, maintaining surface water resources, conserving the scenic rural character, addressing limiting soil condition and promoting continued agricultural use opportunities, while also providing a range of development opportunities that offer alternatives for the landowner. [Ordinance No. 02-1268, § 17-16.A.]
The principal permitted uses in the VRC and MRC districts include the following:
Single family dwellings and conversions. Community residences for the developmentally disabled, community shelters for victims of domestic violence, community residences for the terminally ill and community residences for persons with head injuries.
Cemeteries; golf courses with accessory club house; eating facilities; tennis courts; swimming pools and similar usual accessory structures; public library; public parks and playgrounds; municipal buildings including school bus shelters; fire houses.
Farm and agricultural uses including, as accessory uses, horse riding lessons and a farm stand offering facilities for seasonal sale of products or produce, in accordance with the Township's Right-to-Farm Ordinance.
Model homes . . . as a sales office within a residential development . . . during the period necessary for the sale of new homes within that development. [Ordinance No. 02-1268, § 17-160.B.]
The Ordinance permits open lands subdivisions on tracts of eighteen acres or more in the VRC district and forty acres or more in the MRC district. The Ordinance states:
[T]his option is intended to promote the retention of large contiguous wooded tracts and large farm tracts, and to promote the aggregation of smaller wooded and farm parcels. It is also intended to encourage and promote flexibility, economy and environmental soundness in subdivision layout and design . . . . At least 60 percent of the tract if located in the VRC District and 75 percent of the tract if located in the MRC District is to be designated as "open lands" and shall, as a condition of approval of the development, be deed restricted for agricultural or conservation use. Lots qualifying as open lands shall be permitted a primary residence and other accessory buildings uses as provided in this ordinance. [Ordinance No. 012-1268, §§ 17-160.I.4.2.]
Open lands subdivisions and cluster subdivisions on tracts of eighteen acres or more in the VRC district and forty acres or more in the MRC district are permitted, with minimum open space of 60% of the total tract in the VRC district and 75% of the total tract in the MRC district. Specific standards applicable to open lands subdivisions are set forth in section 17-160.I.4.2 and cluster subdivisions are set forth in section 17-160.I.4.3. Furthermore, lot-averaging subdivisions are permitted on tracts of eighteen acres or less in the VRC district and forty acres or less in the MRC district in accordance with standards specified in the Ordinance. Section 17-160.I.4.4.
In the case of open lands, cluster and lot averaging subdivisions, the Ordinance provides that development plans for such subdivisions shall not result in a greater dwelling unit yield than if the property in question were developed as a conventional subdivision. Section 17-160.I.4.4. The Ordinance also provides for non-contiguous cluster developments in the VRC and MRC districts; standards for the municipal designation of villages in the VRC district; development standards for villages in the VRC district; and grandfathering of non-conforming properties in the VRC and MRC districts. Sections 17-160.J-M.
Plaintiffs are property owners in the Township. When the trial commenced on May 17, 2006, the following persons and entities remained as plaintiffs: Sanford J. Schwinn; Joan B. Muscente; John Kuhn Bleimaier; Richard J. and Donna M. Gillespie; James S. and Amy Regan; the Clara Hunter Estate; the Niederer Family (Thomas, Dennis and Lillian); Merrick Wilson/Pennington Hills Partnership; Presidential Hill, LLC; Patricia A. Hoffman; and Joseph R. and Sandra L. Saladino. Plaintiff Bleimaier owns 66.61 acres of property formerly in the R-200 and R-250 zoning districts and in the VRC and MRC districts following adoption of Ordinance 02-1268. The Estate of Clara Hunter owns approximately 142 acres formerly in the R-250 zoning district and in the MRC district following adoption of the revised zoning ordinance.
Plaintiffs Gillespie own approximately 127 acres of property formerly in the R-250 zoning district and now in the MRC district. Plaintiff Muscente owns approximately 51 acres of property formerly in the R-200 zoning district and now in the VRC district.
Plaintiff Lillian Niederer owns approximately 109 acres of property formerly in the R-250 zoning district and now in the MRC district. Plaintiffs Thomas and Dennis Niederer own approximately 119 acres of property formerly in the R-200 and R-250 zoning districts and now in the VRC and MRC districts.
Plaintiffs Regan own approximately 357 acres of property formerly in the R-200 and R-250 zoning districts and now in the VRC and MRC districts. Plaintiffs Saladino own approximately 132 acres of property formerly in the R-200 zoning district and now in the MRC district. Plaintiffs Schwinn own approximately 112.02 acres of property formerly in the R-250 zoning district and now in the MRC district. Plaintiff Merrick Wilson/Presidential Hill, LLC and Pennington Hills, LLC own approximately 88 acres formerly in the R-200 zoning district and now in the VRC district. All of plaintiffs' properties carry farmland assessments.
Prior to adoption of Ordinance 02-1268, the R-200 zoning district permitted single-family residential lots on a minimum of two acres. The R-250 zoning district permitted single-family residential lots on a minimum of three acres.
In their complaint,*fn1 plaintiffs alleged that the ordinance was invalid due to a conflict of interest of one of the members of the Township Committee (Count One). They also alleged that the ordinance was invalid because it was not adopted to further any lawful purpose (Count Two), and because it was inconsistent with the Master Plan (Count Three). Plaintiffs alleged that the resolution memorializing adoption of the zoning ordinance did not contain the findings required to resolve the inconsistency between the Master Plan and the zoning ordinance (Count Four). Plaintiffs also alleged that the ordinance was arbitrary as applied (Count Five) and effects an improper taking of their property (Count Eight). They also alleged that the ordinance violated the Federal Fair Housing Act, 42 U.S.C.A. §§ 3601 to 3619, and the State Law Against Discrimination, N.J.S.A. 10:5-1 to -49, (Count Nine); and the State Fair Housing Act, N.J.S.A. 52:27D-301 to -329, (Count Ten). Finally, plaintiffs alleged that the ordinance was arbitrary and capricious because it failed "to give reasonable and adequate consideration to the character of [their] propert[y] in contrast to the character of other properties" in the VRC and MRC districts (Count Eleven). At the close of plaintiffs' case, Judge Feinberg dismissed all but Count Eleven.
We present a summary of the testimonial and documentary evidence presented at trial. We incorporate the extensive summary of the evidence contained in Judge Feinberg's September 21, 2006 opinion.
The Township grew considerably during the 1990s. Over 1800 new housing units were built and the Township added 4515 new residents. In reaction, the Township sought to direct growth to the most appropriate places through its Master Plan and zoning ordinances.
The recent growth in the Township and protection of its environmentally sensitive areas became an important consideration to the Township Committee and Township planning board. In this respect, Michael Bolan, the Township Planner since 1999, noted that the 1992 Master Plan focused on meeting the Township's affordable housing obligation and on protecting the Township's environmentally sensitive areas. Specifically, the Master Plan identified the preservation of farmland and the protection of the Township's undeveloped and rural character, including forests and farms, as valuable goals and specifically referenced the environmentally sensitive areas of the Township located in the mountains and valleys, areas now within the MRC and VRC districts.
In 1998, the Township issued its 1998 Master Plan Reexamination Report. It noted that the Township had met its affordable housing requirement. The Report also recognized the Township's desire to "transfer . . . development from the valleys and Sourland Mountain to areas with higher concentrations of development in designated centers," in order to protect the Township's "major wooded areas, various drainage corridors, and wet soil conditions." The goal was to create higher density villages "while preserving less densely developed rural and environmentally sensitive areas throughout the valley and mountain," in order to "stop ...