On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9276-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Fasciale.
In this appeal, we consider whether a municipality's adoption of an ordinance inconsistent with its master plan met the requirements of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and specifically, whether the governing body's reasons for adopting the ordinance were "set forth in a resolution and recorded in its minutes," N.J.S.A. 40:55D-62a. We conclude that the governing body's actions here were sufficient to meet the statute's requirements and reverse.
The record reveals that, on July 27, 2000, the Mahwah Township Council adopted Ordinance 1368, which added health and fitness centers as conditional uses in the IP-120 (industrial park) zone. Plaintiff Mahwah Realty Associates, Inc. (Mahwah Realty), an owner of a health club, filed an action in lieu of prerogative writs challenging the ordinance. By written opinion, Judge Jonathan N. Harris recognized there was "a lack of substantial consistency" between the ordinance and Mahwah's master plan and a flaw in the process, because the council failed to identify the inconsistency and "comply with N.J.S.A. 40:55D-62." Consequently, Judge Harris struck down the ordinance but also declared that "[n]othing in this opinion is intended to suggest that the governing body is prohibited from reintroducing and readopting an ordinance to reach the same or similar result as long as it is done in conformity with the law."
On September 27, 2007, the council adopted Ordinance 1589 to add "health and wellness centers and fitness and health clubs as permitted uses" in the GI-80 (general industrial) and IP-120 zones. Plaintiffs Mahwah Realty and TSI Mahwah, LLC (hereafter "plaintiffs") filed a timely complaint in lieu of prerogative writs, and at the conclusion of a trial, Judge Harris held that Ordinance 1589 was invalid "primarily because Mahwah failed to give adequate and proper notice of its legislative activities to all interested and affected parties" as required by N.J.S.A. 40:55D-62.1. The judge, however, found the "legislative birthing process . . . ha[d] no other significant defects," explaining that "the detailed explanatory information contained in Ordinance 1589's preamble obviate[d] the failure to adopt a separate resolution explaining why the governing body adopted an ordinance inconsistent with Mahwah's" master plan.
On July 23, 2009, the council introduced Ordinance 1653, which sought
to "include health and wellness centers and fitness and health clubs
as principal permitted uses in the" GI-80 and IP-120 zones.*fn1
The next day, the municipal clerk sent the ordinance to the
planning board with a request for comments. On July 29, 2009, notice
of the September 10, 2009 public hearing
and "the entire text of the proposed ordinance" was published in a
local newspaper. On August 6, 2009, the municipal clerk sent notice of
the public hearing by certified mail to "all property owners in the
B-40, GI-80, IP-120 zoning districts, all property owners within 200
feet of those zoning districts, as well as all others entitled to
The planning board reviewed the ordinance at its August 10, 2009 meeting and found, among other things, that the ordinance was inconsistent with the master plan but nevertheless "provide[d] needed services to the residents of Mahwah." Consequently, the planning board recommended its adoption and sent a memorandum to the mayor and township council containing its comments.
On September 10, 2009, the council held a public hearing during which it adopted Ordinance 1653. At the same time, the council adopted Resolution 086-09A, which contains the council's reasons for its action. The resolution memorializes the council's recognition that the ordinance was inconsistent with the master plan but that it should be adopted notwithstanding because: (1) "this ordinance . . . will allow for uses that are consistent with the uses that have been permitted in [GI-80 and IP-120] by variances" already granted; (2) "there exists a variety of service-related uses in the GI-80 and IP-120 Zones, including a fitness and health club, gymnasium center, [and] dance academy . . . all of which have been determined to be compatible and appropriate uses in" these zones; (3) "there are buildings in the GI-80 and IP-120 Zones that are sufficiently large in size that can appropriately accommodate health and wellness center and fitness and health club uses"; (4) the location of the zones "will allow the public the opportunity to take advantage of a wide variety of multi-disciplinary health, fitness, and wellness services within facilities in centralized and accessible districts"; (5) "these uses . . . will promote the health, safety, morals and general welfare; guide the appropriate use or development of all lands in Mahwah; provide sufficient space in appropriate locations for these uses; and encourage the coordination of various public, semi-public, and private procedures and activities to . . . benefit . . . the State as a whole"; and (6) "health and wellness centers are a new and unique use not envisioned nor current at the time of adoption of the master plan or zoning ordinance." For these essential reasons, the council found it "appropriate and consistent with the purposes of the [MLUL] to include health and wellness centers and fitness and health clubs as principal permitted uses in the GI-80 Zone and IP-120 Zone."
On October 20, 2009, plaintiffs filed a complaint in lieu of prerogative writs against Mahwah and its mayor, council, and planning board. A later amended complaint alleged that: (1) Ordinance 1653 is arbitrary, capricious, and unreasonable; (2) the ordinance is inconsistent with the master plan and does not comply with the requirements for adoption of inconsistent ordinances; (3) the ordinance contains procedural defects resulting from a failure to comply with N.J.S.A. 40:49-2; (4) the planning board's recommendation was defective; (5) the council and planning board failed to make previously requested amendments to the ordinance; (6) the council and planning board failed to give proper notice; (7) the ordinance did not take into account the minimum lot size and prior ordinances considering health club use as a conditional use; (8) Mahwah failed to adequately study the proper zone in which to place health and fitness clubs and failed to study the elimination of the pass through from the IP-120 Zone to the B-40 Zone; (9) the ordinance's definition of "medical spa" is ambiguous, meaning Mahwah may have authorized this retail service without full consideration; (10) the planning board members have conflicts of interest; (11) the council members have conflicts of interest; and (12) the planning board's recommendation, upon which the council relied in adopting the ordinance, was defective.
Another judge was assigned to the case. On June 4, 2010, the judge entered an order that permitted plaintiffs to take depositions regarding their conflict-of-interest allegations. A few weeks later, plaintiffs moved for an order compelling the depositions of the mayor, council members, and planning board members. The judge granted plaintiffs' motion and denied defendants' cross-motion for a protective order, recognizing "the inherent danger of any inquiry that may lead into the mental processes surrounding the decision of a board member" but concluding that "facts tending to prove a conflict . . . are not within the realm of the mental processes of members of the [c]ouncil and [p]lanning [b]oard, and are not protected." Plaintiffs' counsel deposed the mayor and other council members in August 2010. At the end of the month, plaintiffs sought more specific answers because the deponents failed "to answer any questions related to treatment at Valley Hospital," which was alleged in the complaint to be a proponent of the ordinance. Defendants opposed this motion and again cross-moved for a protective order. The judge granted plaintiffs' motion and ordered the council and planning board members to answer the following questions:
(1) Whether any member (or immediate family member) spent time in Valley Hospital and the duration of such stay; (2) Whether any member (or immediate family member) was treated in the emergency room of Valley Hospital; (3) Whether the experience at Valley Hospital [was] satisfactory; (4) Whether Valley Hospital helped the condition or even save[d] a life of any member (or immediate family member); (5) Whether any member (or member of their immediate family) incurred substantial bills, or any bills, from Valley Hospital; [and] (6) Whether any member (or member of their immediate family) attended any programs offered by Valley Hospital (i.e., cardiac rehabilitation for a heart attack).
The judge denied defendants' cross-motion for a protective order, determining that these "limited questions . . . are not prejudicial" and do not ...