Posted by: Patricia Salkin | May 30, 2016

NJ Superior Court Finds Town Zoning Ordinance Reducing Density from One Lot Per Acre to One Lot Per Six Acres Arbitrary and Capricious

Plaintiff Merck, Sharp & Dohme Corp. owned an approximately 206-arce parcel in Defendant Town of Branchburg. In 2006, the Town considered a Master Plan Reexamination Report, warning against development on six-acre lots, and leading to the Township’s adoption of Ordinance 2008-1093. This Ordinance sought to protect farmland and open space by rezoning the property from one-acre lots to a density of six acres per lot, with a cluster option allowing lots as small as one acre provided there was a substantial open space set aside. At trial, two witnesses testified as professional planners: Paul Phillips for the Plaintiff, and Frank Banish for the Defendant. After finding that the exhaustion of remedies would be futile in this case, since the Board of Adjustment could not offer the requested relief of restoring the original zoning density, the court, before the Honorable Peter A. Buchsbaum J.S.C, analyzed Plaintiff’s as applied challenge to the zoning ordinance.

Plaintiff’s witness testified as to the regional designations applicable to the site: the land was in a Planning Area Two, which was designated as a “suburban growth area” in the State Plan; the land was marked as a “growth management area” by the Somerset County Master Plan; and the land was designated for the eventual installation of sewers. As conceded by Defendant’s planning witness, these facts resulted in it becoming unlikely that the farmland would be able unable to obtain state funds for farmland preservation. Having heard both parties’ testimony, the court analyzed whether the zoning carried out the purposed of the Municipal Land Use Law.

Here, the court first noted that the open space goal, effectuated by a significant density reduction, conflicted with regional growth plans. The property at issue had been designated unanimously in all regional plans for growth, not farmland preservation or a similar use. As such, the reduction of density on the property from 150 lots to 30 lots, rendered it useless for that purpose. Furthermore, the surrounding areas all had densities that coincided with the prior zoning of the property at issue.

Moreover, the court discussed that Municipal Land Use Law was created to ensure that the development of individual municipalities “does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole.” Viewed in this regional context, the open space goal deprived the State Plan of any efficacy. The court therefore found no reason why the down-zoning, in contravention of regional objectives, was needed in this case. Additionally, there was no density bonus, and thus no economic incentive, for clustering under the Ordinance 2008-1093. Accordingly, the court voided the Ordinance and suggested that if Branchburg wished to adopt an appropriate river corridor ordinance to protect the corridor along the Raritan River, that would be a more appropriate balance of state and municipal objectives.

Merck, Sharp & Dohme Corp. v. Township of Branchburg, SOM-L-1172-08 (April 28, 2016)

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