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East Windsor Group, LLC and Tr Liquor, LLC v. Township Council of the Township of Toms River and Township of Toms River

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 15, 2011

EAST WINDSOR GROUP, LLC AND TR LIQUOR, LLC, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP COUNCIL OF THE TOWNSHIP OF TOMS RIVER AND TOWNSHIP OF TOMS RIVER, DEFENDANTS-RESPONDENTS, AND
LAKE REAL ESTATE, LLC, DEFENDANT.*FN1
EAST WINDSOR GROUP, LLC AND TR LIQUOR, LLC, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP COUNCIL OF THE TOWNSHIP OF TOMS RIVER AND TOWNSHIP OF TOMS RIVER, DEFENDANTS-RESPONDENTS, AND
LAKE REAL ESTATE, LLC, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-4086-08 and L-854-09.*fn2

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 30, 2011

Before Judges Fisher, Sapp-Peterson and Fasciale.

Plaintiffs, East Windsor Group, LLC, and TR Liquor, LLC (hereinafter collectively referred to as "plaintiffs"), are owners of a hotel and restaurant in the Township of Toms River (Township). They appeal the dismissal of their complaint in lieu of prerogative writs challenging two ordinances adopted by the Township Council of Toms River (Council), Ordinance No. 4164-08 and Ordinance No. 4183-09. We affirm substantially for the reasons expressed by Judge Vincent J. Grasso in his thorough and well-reasoned written opinion of June 24, 2010, which was summarized in a final judgment dated July 14, 2010.

Plaintiffs' challenge to the ordinances stems from the proposed construction of a Courtyard Marriot Hotel, along with two restaurants, north of Route 37 and south of Bay Avenue along Hooper Avenue in Toms River by developer, Lake Real Estate, LLC (Lake). As proposed, one of the restaurants would be located in the hotel, and the other restaurant would be constructed as a free-standing structure. The hotel and restaurants were slated to be built in the O-15 Zone. Prior to the passage of the two ordinances, hotels and restaurants were not permitted uses within the O-15 Zone. Lake applied to the Township Board of Adjustment for a use variance. Before the Board of Adjustment acted on the application, Lake petitioned Council and the Township Planning Board (Board) to amend its zoning ordinance to include hotels and detached restaurants as permitted uses within the O-15 Zone. The Board recommended that Council adopt an ordinance permitting hotels and motels in the O-15 Zone as conditional uses. Council adopted the amendment to Ordinance No. 4164-08 as proposed by the Board. Thereafter, the Township planner and the Township attorney recommended several amendments to the Township's master plan. The recommendation included permitting free-standing restaurants in the O-15 Zone. Council approved this recommendation and amended Ordinance No. 4183-09.

Plaintiffs filed their first complaint following the passage of Ordinance No. 4164-08, and its second complaint after Council amended Ordinance No. 4183-09. The court consolidated the matters and conducted a bench trial. Plaintiffs presented expert testimony from Gordon Gemma (Gemma), who testified that (1) the ordinances were adopted without proper notice to affected property owners, (2) the planner's re-examination was flawed, and (3) the two ordinances permitting hotels and restaurants as permitted uses within the O-15 Zone violated provisions of New Jersey's Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-89 and -28.

Toms River planner, John J. Lynch (Lynch), testified that his recommendation that hotels and free-standing restaurants be allowed in the O-15 Zone was influenced by the hotels' and restaurants' "strong compatibility and supportive relationship to office uses and employment centers." He disagreed that the notice requirements to affected property owners was defective and stood by the re-examination report he prepared.

In a comprehensive written opinion, Judge Grasso found that the adoption of the two ordinances comported with applicable procedural and substantive requirements. Accordingly, he dismissed the action. The present appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT [I]

ORDINANCE 4164-08 IS ALSO VOID BECAUSE THE TOWNSHIP FAILED TO NOTICE PROPERTY OWNERS WITHIN 200 [FEET] IN ALL DIRECTIONS OF THE BOUNDARIES OF THE ZONING DISTRICTS WHERE HOTELS AND MOTELS WERE ADDED AS A CONDITIONAL USE PURSUANT TO N.J.S.A. 40:55D-62.1 AND THE HOTEL STANDARDS AND DEFINITIONS WERE CHANGED.

POINT [II]

THE NOTICE FOR THE PUBLIC HEARING ON THE ZONING ORDINANCE 4183-09 WAS INSUFFICIENT AND FAILED TO COMPLY WITH THE STANDARDS SPECIFIED IN N.J.S.A. 40:49-2 AND N.J.S.A. 40:49-2.1.

1. DEFECTIVE NOTICE MANDATES INVALIDATION OF A ZONING ORDINANCE BECAUSE NOTICE TO THE PUBLIC IS A JURISDICTIONAL PREREQUISITE TO THE TOWNSHIP'S AUTHORITY TO ACT IN THE FIRST INSTANCE.

POINT [III]

ORDINANCE 4183-09 IS DEFECTIVE WHERE IT IS BASED ON A DEFICIENT MASTER PLAN AMENDMENT.

1. THE DECEMBER 17, 2008 MASTER PLAN UPDATE AND REEXAMINATION REPORT IS DEFECTIVE.

2. THE 2008 AMENDED LAND USE ELEMENT PLAN [AND] REEXAMINATION REPORT OF THE MASTER PLAN IS ALSO DEFECTIVE PURSUANT TO N.J.S.A. 40:55D-28.

3. THE PLANNING BOARD'S FAILURE TO FOLLOW THE PROCEDURE FOR ADOPTING THE MASTER PLAN AMENDMENT RENDERS THE MASTER PLAN INVALID, THEREBY FURTHER INVALIDATING ORDINANCE 4183-09.

The judicial role in the review of zoning ordinances adopted by a municipality is "tightly circumscribed." Harvard Enter., Inc. v. Bd. of Adjustment of Twp. of Madison, 56 N.J. 362, 368 (1970). Such ordinances are cloaked with a presumption of validity, and this presumption will only be overcome where the municipality has engaged in action that is clearly arbitrary, capricious or unreasonable. Ibid. The presumption may also be overcome where the municipality's action is "plainly contrary to fundamental principles of zoning or the [zoning] statute." Sartoga v. Borough of W. Paterson, 346 N.J. Super. 569, 579 (App. Div.) (quotation and internal quotation marks omitted), certif. denied, 172 N.J. 357 (2002).

"Although the judicial role is circumscribed, a court may declare an ordinance invalid if in enacting the ordinance the municipality has not complied with the requirements of the statute." Riggs v. Twp. of Long Beach, 109 N.J. 601, 611 (1988) (citing Taxpayer Ass'n of Weymouth Twp. v. Weymouth Twp., 80 N.J. 6, 21 (1976), cert. denied sub nom., 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977)).

N.J.S.A. 40:55D-62.1 provides in pertinent part:

Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district, exclusive of classification or boundary changes recommended in a periodic general reexamination of the master plan by the planning board pursuant to section 76 of P.L.1975, c. 291 (C.40:55D-89), shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property as shown on the current tax duplicates, located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district, and located, in the case of a boundary change, in the State within 200 feet in all directions of the proposed new boundaries of the district which is the subject of the hearing.

Judge Grasso found that prior to the amendment of Ordinance 4164-08, the O-15 Zone permitted a myriad of uses which included offices, banks, medical clinics, essential services, community residences, community shelters, care centers, as well as private and parochial schools and vocational schools. The addition of hotels and motels within the O-15 Zone is not viewed by this court as a zoning change . . . which "dramatically altered the intensity" of the uses within the zone nor one that changed the classification or boundaries. Accordingly, the introduction and adoption of Ordinance 4164-08 is not invalidated for its failure to include the personal notice requirement under N.J.S.A. 40:55D-62.1. It was not required in this case. Moreover, the testimony of planner Lynch strikes the court as more persuasive than that offered by planner Gemma[,] who opined that the change "substantially affects the character of the zone." The record and facts in this case do not overcome the presumptive validity attached to the municipalities' actions. Lynch plausibly opined that hotels and motels have a "strong compatibility and supportive relationship to office uses and employment centers" which does not equate[,] in the court's view[,] with dramatic change[,] but is merely the addition of a use that is suitable for the zone.

Turning to the re-examination of the Township master plan, the judge observed that periodic reviews of a municipality's master plan are exempt from the personal service requirement. The exemption from personal service is addressed by the Appellate Division in Campbell v. Borough of North Plainfield, 404 N.J. Super. 337 (App. Div. 2008)[,] which cites an earlier opinion in Gallo v. Mayor & [Township] Council of Lawrence Township, 328 N.J. Super. 117 (App. Div. 2000). As noted in Gallo at page 126, "As demonstrated here, the very nature of periodic review of a master plan precluded it from remaining a secretive process and outside of public oversight and scrutiny.

Against this not atypical factual backdrop, the Legislature was keenly aware of the distinction between the two separate processes and did not perceive it necessary to require that each property owner affected by a master plan change and zoning change be notified."

In addition to the statutorily mandated review pursuant to the MLUL, the judge noted that both experts acknowledged that a permissive review of a municipality's master plan may be undertaken at any time. Moreover, Judge Grasso also noted that the re-examination process afforded the public a second opportunity to be on notice of the proposed zoning changes. Finally, Judge Grasso found that the re-examination report substantially complied with N.J.S.A. 40:55D-89a to -e, there was a rational basis for permitting the amendments, and there is no requirement that the reexamination report address all of the criteria set forth in N.J.S.A. 40:55D-89.

We are in complete agreement with Judge Grasso's application of the governing legal principles. Notice is only required when the amendment "propos[es] a change to the classification or boundaries of a zoning district." N.J.S.A. 40:55D-62.1. We have previously interpreted the word "classification," as used under the MLUL, as "typically synonymous with the broad general uses permitted in a designated area, such as residential, commercial, retail and industrial, and extends to sub-categories within those general categories, such as single-family residential, highway commercial, and neighborhood retail." Robert James Pacilli Homes, L.L.C. v. Twp. of Woolwich, 394 N.J. Super. 319, 330 (App. Div. 2007). Thus, notice is required when "[a] change in any of these broad categories and sub-categories has the capacity to fundamentally alter the character of a zoning district." Id. at 331.

Here, Judge Grasso's finding that the amendments to Ordinance 4164-08 did not create a "dramatic change," but simply allowed additional uses that are suitable for the zone, was supported by substantial, credible evidence in the record. He explained that the O-15 Zone allowed several types of uses, including offices, banks, medical clinics, community residences and shelters, care centers and schools, and that the testimony of Lynch, who opined hotels had a "'strong compatibility and supportive relationship to office uses and employment centers,'" was more credible than Gemma, who opined that the change "'substantially affect[ed] the character of the zone.'" Furthermore, Judge Grasso found the record and facts did not overcome the presumptive validity attached to the Township's actions. Thus, Council's amendment did not alter the character of the zone to trigger the notice provision of N.J.S.A. 40:55D-62.1.

We likewise reject plaintiffs' contention that the published notice in connection with the introduction and adoption of Ordinance No. 4183-09 was insufficient under N.J.S.A. 40:49-2a. The published notice advised the public of Council's plan and purpose, described the time and place of the hearing on the proposed ordinance, and advised the public that a copy of the ordinance could be obtained without cost to the general public.

Plaintiffs' reliance upon Cotler v. Township of Pilesgrove, 393 N.J. Super. 377 (App. Div. 2007), and Wolf v. Mayor & Borough Council of Shrewsbury, 182 N.J. Super. 289 (App. Div. 1981), certif. denied, 89 N.J. 440 (1982), is misplaced. In Cotler, the notice failed to notify the public which zoning districts would be affected by the proposed revision and supplementation to the zoning and land use regulations. Cotler, supra, 393 N.J. Super. at 387. In Wolf, the notice to the public failed to advise the public of the purpose of the amendment to the borough's zoning code. Wolf, supra, 182 N.J. Super. at 294. The notice provided to the public here suffered from no such deficiencies. See Shakoor Supermarkets, Inc. v. Old Bridge Twp. Planning Bd., 420 N.J. Super. 193, 203 (App. Div. 2011).

Finally, we reject plaintiffs' arguments that Council's reexamination is invalid because the re-examination did not include consideration of all of the sixteen components of a master plan as set forth in N.J.S.A. 40:55D-28b nor meet all of the requirements of N.J.S.A. 40:55D-89. The MLUL only requires consideration of the first two criteria set forth in N.J.S.A. 40:55D-28b and the remaining fourteen where appropriate. N.J.S.A. 40:55D-28b.

N.J.S.A. 40:55D-89 mandates re-examination at least once every six*fn3 years, and the report of such examination must include the items set forth in "a" through "e" of this provision. The statute does not specifically state that compliance with all of the requirements of N.J.S.A. 40:55D-89 is required for permissive re-examinations. However, assuming that strict compliance is contemplated, the impact of non-compliance does not automatically invalidate the ordinances adopted. Lionshead Woods Corp. v. Kaplan Bros., 243 N.J. Super. 678, 684-85 (Law Div. 1990). Rather, non-compliance simply creates a rebuttable presumption that the ordinances adopted were not reasonable. Ibid. (citing Medici v. BPR Co., 107 N.J. 1, 20 (1987)). As Judge Grasso observed prior to passage of the two ordinances, the O-15 Zone permitted a myriad of uses which included offices, banks, medical clinics, essential services, community residences, community shelters, care centers, as well as private and parochial schools and vocational schools. The addition of hotels and motels within the O-15 Zone is not viewed by this court as a zoning change . . . which "dramatically altered the intensity" of the uses within the zone nor one that changed the classification or boundaries.

The court was persuaded by the testimony of Lynch that hotels and restaurants were compatible and supportive of the existing permitted uses without dramatically altering the O-15 Zone's boundaries or classifications. Consequently, assuming the absence of a presumption of validity of the ordinances because of non-compliance with N.J.S.A. 40:55D-89, there was substantial credible evidence in the record that the ordinances bore a real and substantial relationship to existing land use patterns. Holmdel Builders Ass'n v. Twp. of Holmdel, 121 N.J. 550, 569 (1990) ("In addition to advancing a recognized purpose of zoning, a zoning ordinance must bear a 'real and substantial relationship to the regulation of land.'" (quoting State v. C.I.B. Int'l., 83 N.J. 262, 271 n.4 (1980))).

Affirmed.


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