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Realty Sites v. Township of Clark

January 5, 2009

REALTY SITES, A NEW JERSEY PARTNERSHIP AND VILLA CONTRACTING COMPANY, PLAINTIFFS-RESPONDENTS,
v.
TOWNSHIP OF CLARK AND TOWNSHIP COUNCIL OF THE TOWNSHIP OF CLARK, DEFENDANTS-APPELLANTS, AND THE PLANNING BOARD OF THE TOWNSHIP OF CLARK, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-2750-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 18, 2008

Before Judges Yannotti and LeWinn.

The Township of Clark and the Township Council appeal from an order entered by the Law Division on December 10, 2007, which invalidated Ordinance 05-14, an enactment that amended the Township's zoning ordinance. For the reasons that follow, we reverse.

I.

In April 2003, Heyer, Gruel & Associates (HGA), community planning consultants, undertook a reexamination of the Township's master plan and provided the planning board with a report entitled, "Master Plan Update." The consultants reviewed the existing conditions of the Township; its demographics; its vacant land; the properties that are constrained by environmental conditions; the residential, commercial and industrial uses; and the land devoted to public and quasi-public use. HGA recommended that the Township make certain changes to its master plan.

HGA proposed the creation of a new "Downtown Village" (DV) zoning district, suggesting that such a district replace the existing "Neighborhood Commercial" and "Commercial Office" zones between Washington Street and Broadway from Denman Avenue and Benjamin Street to the Township's border with Rahway. The report stated:

[t]his zone should permit uses such as offices, restaurants, retail shops and private clubs, similar to the current zoning. No home occupations or home offices should be permitted in this district. The [principal] effects of this zone would be to limit the size of businesses, create a higher density, and only allow uses that encourage foot traffic. Residences will be permitted only on the second and third floors over retail. Drive-thru banking will be discouraged. Gas stations will not be permitted.

HGA further recommended that the "Commercial Office" zone at Madison Hill Road and Raritan Road be reduced and changed to "Neighborhood Commercial." HGA also suggested that the Township (1) decrease the size of the "Commercial Office" zone at Westfield Avenue and Raritan Road; (2) reduce the amount of land dedicated to "Neighborhood Commercial" uses on Raritan Road between Central and Westfield Avenues; (3) retain the "greater part" of the "Commercial Office" zone along Brant Avenue as a location for small offices; (4) and convert some of the "Commercial Neighborhood" and "Commercial Office" areas along Westfield Avenue to residential use.

In May 2003, the planning board conducted a public meeting at which it considered and approved the master plan update. In September 2003, the Township adopted revisions to the master plan based upon the recommendations in the master plan update.

Thereafter, HGA conducted a further examination of the Township's master plan and in February 2004 provided the Township with a "Master Plan Re-examination Report." In that report, HGA noted that components of the Township's master plan had previously been updated with a new "Fair Share Housing Plan" and that certain changes were adopted in 2003 as a result of the master plan update. HGA's 2004 reexamination report therefore addressed the remaining elements of the Township's master plan.

HGA recommended thirteen additional changes to the master plan and the Township's development ordinances. The recommended changes included: construction of another Garden State Parkway interchange south of the Township; improvements to the existing Parkway interchange; formation of a traffic improvement district; establishment of bus service to certain regional destinations; investigation of "traffic calming measures" for residential neighborhoods; improvements to certain roadways and intersections; reviewing the water system to ensure sufficient pressure to service residential and fire needs; and upgrading the stormwater management facilities to the extent required to meet State standards. The Council considered and approved HGA's reexamination report at a public meeting.

In February 2005, Richard O'Connor, the Township's engineer, provided John Laezza, the Township's business administrator, with proposed amendments to the Township's zoning ordinance to implement the recommendations of the 2003 master plan update and the 2004 reexamination report. O'Connor also provided Laezza with a new district zoning map ...


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