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John M. Rochelle Builders, Inc. v. Planning Board of the Township of Morris

November 3, 2008

JOHN M. ROCHELLE BUILDERS, INC., PLAINTIFF-RESPONDENT,
v.
THE PLANNING BOARD OF THE TOWNSHIP OF MORRIS, DEFENDANT, AND THE TOWNSHIP OF MORRIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1461-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2008

Before Judges Wefing, Yannotti and LeWinn.

The Township of Morris appeals from an order entered by the Law Division on May 9, 2007, which found that the Township's zoning ordinance is arbitrary and capricious as applied to property designated as Lot 12, Block 3702, on the Township's tax map; that Lot 12 shall not be treated as having merged with Lot 1; and any development proposal for Lot 12 as presently configured shall not require subdivision approval. We affirm.

In 1946, Robert S. Rochelle and Elizabeth Ann Rochelle acquired title to an eight-acre tract of property in the Township. At the time, the property was in the "A" residential zone, in which single-family dwellings were permitted on lots with a minimum size of 15,000 square feet.

In the early 1950's, the Rochelles subdivided the eight-acre tract. Almost all of the subdivided lots fronted on Doe Hill Road, and were approximately one and one-half acres in size. The Rochelles retained title to Lot 1. Seven of the lots on Doe Hill Road were developed in the early 1950's; however, Lot 12 remained vacant.

In 1955, the Township enacted a zoning ordinance that placed Lots 1 and 12 in a zone where residential development is permitted on lots of at least three acres. At the present time, Lots 1 and 12 are located in an RA-130 zone, bounded by Mendham Road and White Head Road, and including Doe Hill and Indian Head Roads. This zoning district is surrounded by properties in the open space, government use zone (OS/GU). The zoning requirements applicable to Lots 1 and 12, including the minimum three-acre lot requirement, have remained substantially the same since 1955.

In 1992, the Rochelles re-acquired title to Lot 12. Robert S. Rochelle subsequently conveyed title to Lots 1 and 12 to plaintiff, John M. Rochelle Builders, Inc. Thereafter, plaintiff filed an application with the Planning Board, seeking subdivision approval and variances for the purpose of constructing new single-family dwellings on Lots 1 and 12.

Plaintiff's subdivision application indicated that Lot 1 would conform with all of the Township's zoning requirements other than the steep slope regulations. The application further indicated that Lot 12 required four variances to permit a lot area of 1.48 acres, where three acres is required; lot width of 173.75, where 300 feet is required; depth of 245.89 feet, where 300 feet is required, and front yard setback of 65 feet, where 100 feet is required. Plaintiff also sought relief from the Township's steep slope regulations.

The Board denied the application at its meeting of March 20, 2006, and memorialized that action in a resolution approved on May 1, 2006. The Board determined that plaintiff had not satisfied its burden for variance relief under either N.J.S.A. 40:55D-70(c)(1) or (2).

On May 24, 2006, plaintiff commenced this action in the Law Division seeking reversal of the Board's decision. Plaintiff alternatively alleged that the Township's zoning ordinance was arbitrary, capricious and unreasonable as applied to Lot 12. In addition, plaintiff sought damages for the alleged unconstitutional confiscation of its property.

On October 27, 2006, Judge B. Theodore Bozonelis considered the appeal from the Board's decision denying subdivision approval and variance relief, and placed his decision on the record. The judge found that the Board had not acted arbitrarily or capriciously in denying the application. The judge determined that the Board had properly found that variance relief was not warranted under either N.J.S.A. 40:55D-70(c)(1) or (2). The judge entered judgment on November 13, 2006, in favor of the Board.

Thereafter, Judge Bozonelis conducted a bench trial on plaintiff's remaining claims. On April 24, 2007, the judge placed his decision on the record. The judge concluded that the application of the RA-130 zoning requirements to Lot 12 was arbitrary, capricious and unreasonable. The judge considered the Township's objectives in enacting the zoning requirements, including the three-acre minimum lot requirement, and determined that application of the ordinance to Lot 12 did not further any of ...


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