On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1784-05 and L-567-06.
The opinion of the court was delivered by: Lisa, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2008
Before Judges Lisa, Reisner and Sapp-Peterson.
The validity of the land use ordinance in this case hinges on the applicability of the protest provision, N.J.S.A. 40:55D-63, of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.*fn1 The Borough of North Plainfield adopted an ordinance, in accordance with a recommendation in a periodic reexamination of its Master Plan, creating a new zoning district. Plaintiff and others had filed a valid protest. At the time of enactment, North Plainfield's seven-member governing body had one vacancy in office. The ordinance was adopted by a vote of four to two. In separate, unrelated litigation, it had been determined that the vacancy could not be filled until the succeeding general election. See Carley v. Borough of N. Plainfield, 380 N.J. Super. 240 (Law Div. 2005). In this case, North Plainfield argued that (1) the protest provision, which requires "the favorable vote of two-thirds of all the members of the governing body," did not apply because the ordinance was the product of the recent Master Plan reexamination, and (2) even if the protest provision applied, the "judicially created" vacancy should not count in calculating the required two-thirds vote to adopt a land use ordinance over protest, as a result of which four out of six votes satisfied the two-thirds requirement.
Further, North Plainfield subsequently adopted another ordinance, similar to the first one but with some modifications. It argued that the subsequent ordinance, which passed by a six to zero vote, constituted a complete reenactment of the first ordinance, not merely an amendatory ordinance. Therefore, according to North Plainfield, the subsequent ordinance superseded and rendered moot any procedural deficiency in the adoption of the first ordinance.
The trial court rejected North Plainfield's complete reenactment argument and concluded that the subsequent ordinance was an amendatory ordinance, the validity of which depended on the validity of the first ordinance. The trial court also rejected North Plainfield's other arguments. It found the protest provision applicable and held that five votes, representing two-thirds of the full statutorily-authorized membership of the governing body, was required to lawfully adopt the ordinance. The court therefore declared the initial ordinance invalid. We agree and affirm.
The North Plainfield Planning Board undertook a general reexamination of the Master Plan in 2001, see N.J.S.A. 40:55D- 89, culminating in the adoption of a report on August 28, 2002. The report recommended changes for the land use element, including the development, within the residential district, of "senior housing at appropriate locations to meet future needs of the Borough population." The plan explained that the municipality's population, as the national population, was aging and there was a need within the Borough for "the creation of senior communities, ages 55 and up, through to the production of assisted living/congregate care complexes." The plan recommended the creation of "a senior housing, age restricted zone." The plan identified a seventeen-and-one-half acre property, known as the Villa Maria parcel, the site of a Roman Catholic convent, as "the largest single parcel in the Borough ripe for redevelopment at this stage in the Borough's history," and the perfect location for the new zone designation.
The Borough Council moved to implement this recommendation with the creation, by Ordinance No. 05-22, of a new zone, designated as "R-9 Age Restricted Community (ARC) Residence Zone." Permitted uses were limited to those permitted in the R-2 Residence Zone and "Age Restricted Communities." These communities were restricted to occupancy, subject to some narrow exceptions, by individuals over age fifty-five. Minimum tract size was twelve acres, with minimum road frontage of 300 feet.
A development could include up to eighteen-and-one-half dwelling units per gross tract acre, and 250 market-priced dwelling units in total. A 100 foot setback from any adjacent residential property was required. Building coverage was limited to 45% and impervious surface coverage to 65%.
The title to Ordinance No. 05-22 stated that the ordinance was amending the Borough's Land Development ordinance by the "DESIGNATION" and "CREATION" of the R-9 ARC zone. The body of the ordinance provided that North Plainfield's Zoning Map "shall be amended to reflect an R-9 Age Restricted Community (ARC) Residence Zone." The only parcel designated was the Villa Maria parcel. And, the ordinance spelled out in detail all of the requirements and provisions applicable to the newly-created zoning district.
The ordinance was introduced and adopted on first reading on August 29, 2005. The published notice of adoption on first reading and scheduling the ordinance for a second reading and public hearing contained the title, as we have described, and stated that the ordinance "shall create an age restricted community zone within the Borough of North Plainfield." (emphasis added). The Borough clerk also personally served, by certified and regular mail, all property owners within 200 feet of the Villa Maria parcel, including plaintiff, with notice and a copy of the ordinance.
Prior to the October 17, 2005 public hearing, plaintiff and many other property owners within 200 feet filed with the Borough a valid protest opposing the ordinance. Plaintiff and many other affected property owners and members of the community attended the public hearing and spoke in opposition to the ordinance. The vote of the six council members was four in favor, two against. Although the Borough Council president expressed the view that the ordinance failed to carry the necessary two-thirds vote, the mayor later signed the ordinance, and the Borough took the position that it was validly adopted.
We digress from our narrative account of the pertinent events to explain the circumstances of the vacancy in office existing at that time. North Plainfield's governing body consists of seven voting members of the Borough Council. Effective October 15, 2004, a Republican council member resigned his seat. Carley, supra, 380 N.J. Super. at 242. The Republican Municipal Committee failed to submit within fifteen days the names of three nominees to fill the vacancy. Ibid. (citing N.J.S.A. 40A:16-11). Thus, the Borough Council exercised the statutory prerogative to appoint a successor within the next fifteen days. Ibid. This occurred at a special meeting, which the court in that case found to be in violation of the Open Public Meetings Act. Ibid. As a result, the purported appointment was invalidated. Id. at 242-43. The court found a vacancy "by default," to be filled at the next general election in November 2005. Id. at 248.
On November 28, 2005, the Borough Council introduced and adopted on first reading Ordinance No. 05-24, which was similar to Ordinance No. 05-22. As we will explain, this ordinance was never finally adopted. However, it is significant to our analysis. The title of Ordinance No. 05-24 stated that it was amending North Plainfield's Land Development ordinance "BY AMENDING THE DESIGNATION OF AN R-9 AGE RESTRICTED COMMUNITY (ARC) RESIDENCE ZONE." (emphasis added). The published notice of the public hearing stated that Ordinance No. 05-24 "shall amend the age restricted community ("ARC") zone within the Borough of North Plainfield." (emphasis added). The notice personally sent to plaintiff and other affected property owners said "[t]his ordinance amends Ordinance No. 05-22." (emphasis added).
Ordinance No. 05-24 provided that the property comprising the R-9 ARC zone was the Villa Maria property, but, unlike Ordinance No. 05-22, it did not provide that the zoning map would be amended to reflect that district. Ordinance No. 05-24 set forth a similar set of requirements and provisions for the R-9 ARC zone, but with some changes to reduce the density, increase setbacks and the like, which were designed to render proposed development more palatable to the community. The maximum number of units was reduced to sixteen per acre and 225 total; maximum building coverage was reduced to 40%, and impervious coverage to 55%; and the minimum setback from adjacent residential properties was increased to 125 feet. There was also a change to the ingress and egress requirements. In all other respects, Ordinance No. 05-24 was the same as Ordinance No. 05-22.
The Borough clerk again sent personal notice to property owners within 200 feet, including plaintiff. Another valid protest was filed, and, at the public hearing, plaintiff and many others spoke in opposition to the ordinance.
At the commencement of the public hearing, the Borough Council president made clear to the public that consideration was being given only to the amendatory provisions of Ordinance No. 05-24. He said:
Before I open for public comment I'd like to note that this ordinance is an amendment of an existing ordinance. What it does is we already have an age restricted community overlay on the Villa property, and what this does is actually reduce the density of it . . . . But the amendments that we're discussing tonight are in order to reduce the impact of the previous ordinance.
. . . So the ordinance is already passed that creates an age restricted community on the property. And what we're doing this evening is (indiscernible) the density, impervious surface, increasing the number of exits possible, or at least the location of them, and expanding the setback.
I'm going to ask that people hold their comments to the ordinance at hand, and not speak to the previous ordinance. We do have another public comment section at the end of the meeting where if you have comments regarding the previous ordinance and the merits thereof you can make your comments at that point during that. But this hearing is about the changes to existing ordinance that we're making, not about the existing ordinance itself.
By the time of this public hearing, plaintiff had already filed his initial law suit challenging the validity of Ordinance No. 05-22. At one point during the public hearing, while plaintiff was addressing the Borough Council, the Borough Council president admonished plaintiff to limit his comments to the amendatory provisions:
The public hearing that we're having right now is regarding the amendments to existing ordinance. To an ordinance that is in force. It is under legal challenge. Yes. But we are holding a public hearing regarding specific amendments to a specific ordinance. . . .
Mr. Campbell, I've asked you on a number of occasions, I've expressed it very clearly, please, you had a chance in public comment, you chose not to say anything. This is about the amendments ordinance. Please stay on topic.
When you have a matter in front of the council, a specific matter, and we're having a specific public hearing regarding that specific matter. Now, please stick to that. . . . I'm not trying to shut down the conversation about this. I'm merely asking that we discuss the ordinance at hand. We have to vote on this ordinance today. And we are looking for input from you regarding these amendments and this ordinance. It won't change what's done in the past or what will happen ...