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Griepenburg v. Township of Ocean

Superior Court of New Jersey, Appellate Division

August 29, 2013

THOMAS GRIEPENBURG and CAROL GRIEPENBURG, Plaintiffs-Appellants,
v.
TOWNSHIP OF OCEAN, STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION AND STATE OF NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS, Defendants-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 21, 2013

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L— 1420-07.

Peter H. Wegener argued the cause for appellants (Bathgate, Wegener & Wolf, attorneys; Mr. Wegener, of counsel and on the briefs; Rui O. Santos, on the brief).

Gregory P. McGuckin argued the cause for respondent Township of Ocean (Dasti, Murphy, McGuckin, Ulaky, Cherkos & Connors, attorneys; Mr. McGuckin, of counsel; Christopher J. Dasti, on the brief).

Before Judges Fisher, Alvarez and St. John.

PER CURIAM.

Plaintiffs Thomas and Carol Griepenburg are the owners of approximately 31 acres of land (the subject property) in the Township of Ocean. Plaintiffs challenged the enactment of Township ordinances that rezoned the subject property from residential (R-2) and highway commercial (C-3) to an EC Environmental Conservation District (EC Zone). We conclude that these ordinances are invalid as applied to plaintiffs' property because the downzoning is not required to serve the stated purposes of the ordinances and does not reflect reasonable consideration of existing development in the areas where the subject property is located. Following our review of the record and the arguments advanced on appeal, we reverse.

I. The record discloses the following facts and procedural history.

In February 2007, Advanced Horizons IV, LLC, filed a complaint in lieu of prerogative writ under Docket No. OCN-L-773-07 challenging the rezoning of its property as an EC Zone. In April 2007, plaintiffs filed an identical complaint in lieu of prerogative writs under Docket No. OCN-L-1420-07.

Horizons' property consisted of approximately twenty-six acres and was located directly across County Route 532 from the subject property. Like the subject property, Horizons' property was rezoned EC. Horizons' property was undeveloped except for a telecommunications cell tower. Subsequent to the initiation of litigation, Ocean purchased Horizons' property for the public purpose of preservation of open space and Horizon's suit was dismissed.

The subject property consists of approximately thirty-one acres. The property is contiguous and is located on the south side of County Route 532 and directly east of the Garden State Parkway. Except for plaintiffs' residence covering approximately two acres in the eastern-most section of the subject property, the majority of the property is undeveloped woodland. The subject property does not contain any environmentally distinct features such as wetlands, floodplains, steep slopes, or open waters. There are no threatened or endangered species located on the subject property and no past sightings have occurred.

Prior to rezoning in 2006, the subject property was located in two different zones, C-3 Commercial and R-2 Residential. The R-2 Residential Zone allowed residential development on minimum two-acre lots. The C-3 Commercial zone permitted various types of commercial development on minimum one-acre lots in order to accommodate an interchange which bisected the Garden State Parkway and Country Road 532. The desired commercial uses included retail space, offices, medical facilities, and hotels. Prior to rezoning, plaintiffs had entertained offers to sell their property for use as a hotel site.

Beginning in 2004, Ocean became interested in concentrating development in a town center and slowing development outside the center. The Planning Board recommended rezoning Ocean's industrial zoning districts located west of the Garden State Parkway, as well as some properties located east of the Garden State Parkway, to an ...


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