On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5019-07.
The opinion of the court was delivered by: Jonathan N. Harris, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman, and J. N. Harris.
The opinion of the court was delivered by JONATHAN N. HARRIS, J.A.D.
This appeal involves the previously unanswered question of whether individual condominium unit owners may oppose zoning amendments through a protest petition. It involves the interplay of the long-established right to protest zoning amendments, N.J.S.A. 40:55D-63, now found in the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, with this State's more recent recognition of common interest communities and condominium ownership as delineated in the Condominium Act (Condominium Act), N.J.S.A. 46:8B-1 to -38.
We agree with the Law Division that individual condominium unit owners do not enjoy the same measure of protest participation accorded other land owners by the MLUL. Accordingly, we affirm its conclusion that the involvement of individual condominium unit owners as signatories to a protest petition under N.J.S.A. 40:55D-63 does not make the targeted zoning amendment subject to an enhanced voting threshold pursuant to the MLUL. However, because we detect a different, yet fundamental, defect in the municipal proceedings that led to the adoption of the zoning amendment in this case, we reverse and declare the amendatory zoning ordinance invalid.
Defendant Borough of Highlands (the Borough*fn1 ) is a compact 0.71-square mile municipality that in 2000 had a population of 5,097 persons. Defendant Highlander Development Group, LLC (Highlander) owns several acres of land located in the Borough's MH Mobile Home Residence District zone, upon which it established and operated the Shadow Lawn Mobile Home Park. Adjacent to Highlander's property is a fourteen-story residential high-rise structure comprised of 166 condominium apartment units plus common elements, formally known as "EASTPOINTE, a Condominium" (Eastpointe). Portions of Eastpointe's parking yards and open space are located within 200 feet of Highlander's property; none of its condominium apartment units lie within that 200-foot area.
On November 10, 2004, the Borough's Planning Board (Planning Board) adopted an amended and updated Master Plan. In the section devoted to the land use plan element, under the subheading entitled "Mobile Homes," the Master Plan addressed Highlander's property as follows:
The Shadow Lawn Mobile Home Park is approximately [twelve] acres in size and contains approximately 120 mobile home trailers. The tract in its entirety is irregularly shaped. Located on the top of the Highland's cliffs, adjacent to the slump blocks, the stability of the tract and the mobile homes that lie upon it require an engineering evaluation. The tract contains several areas of undulation; however, overall the tract contains a slope range appropriate for development. The location of the tract on the Highland's cliffs offer[s] exceptional views of Sandy Hook, the Shrewsbury River, and the Sandy Hook Bay.
The existing Mobile Home (MH) district permits mobile homes as the only permitted use within the MH district. This [Master] Plan acknowledges the trend for mobile home parks to evolve into uses that are more consistent with surrounding land use patterns. To permit the evolution of mobile home parks in the Borough, this [Master] Plan recommends expanding the types of permitted uses in the MH district to include townhouses and single-family residential homes.
Given the unique attributes of the tract of land where the Shadow Lawn [M]obile [H]ome
[P]ark is located, any future development of the tract should investigate a curvilinear development plan. Buildings should be designed and placed on the site so as to visually compl[e]ment each other and the natural landforms of the site. Consideration should be given to various types of multi-family development that give the flexibility to be creative while maintaining a reasonable density. This [Master] Plan specifically discourages long rows of townhouses that give the appearance of blank walls without articulation.
Under another subheading entitled "Specific Changes Recommended for the Land Development Ordinance," the Master Plan fortified the foregoing by suggesting that stakeholders should: [d]iscuss the inclusion of additional permitted uses for the Mobile Home Park (Shadow Lawn) to allow the mobile home park to evolve into a land use more consistent with surrounding land uses over time.
More than two years later, on May 2, 2007, the Borough's governing body introduced Ordinance O-07-07, which sought to amend and supplement the zoning regulations found in Chapter 21 of the Borough's Revised General Code. The most provocative feature of Ordinance O-07-07 was its adding, as conditional uses in the MH Mobile Home Residence District zone, "[m]ulti-family dwellings and structured parking accessory or appurtenant thereto." There were no provisions for "single-family residential homes" as recommended by the Master Plan.
Additionally, the ordinance supplied standards and specifications for the proposed development of multi-family dwellings, along with requirements relating to the retirement of the mobile home park. Among the dimensional provisions were a height limitation of 180 feet (not including the height of attached parking structures) and a density of twenty units per acre. These provisions contemplated, but did not require, higher density high-rise development rather than lower density townhouse development.
A group of local residents opposed Ordinance O-07-07. They drafted and circulated a protest petition pursuant to N.J.S.A. 40:55D-63*fn2 entitled, "Objection Petition to Proposed 'Zoning' Ordinance Amendment to Modify Section 21-89 MH Mobile Home Residence District O-07-07 to Permit Construction of High-Rise Towers on Shadow Lawn Park" (the first protest petition). The first protest petition, consisting of fifteen-pages of signatures, was filed with the Borough on June 18, 2007. The Borough Clerk later certified that it met the criteria of the statute to trigger the requirement of a super-majority vote -- that is, a vote of four-to-one*fn3 rather than a simple majority -- to make the ordinance effective.
Meanwhile, the governing body directed the Planning Board to undertake a review of Ordinance O-07-07 and provide recommendations pursuant to N.J.S.A. 40:55D-26(a) and -64. On June 14, July 12, and August 9, 2007, the Planning Board held public hearings, discussed the proposed ordinance, and adopted a resolution making findings and proposing recommendations to the governing body in eight discrete areas:
1. The Board finds that the high rise use proposed is consistent with the development in the area such as the [Eastpointe] site.
2. The Board recommends that the Governing Body develop detailed site regulations such as, but not limited to, bulk, density, and lot coverage regulations in order to [e]nsure consistency with the [Eastpointe] project and prevent overdevelopment of the site.
3. The Board recommends that the uses in the zone be expanded to include trailer homes in addition to single family, ...