Cotler v. TOWNSHIP OF PILESGROVE

923 A.2d 338, 393 N.J. Super. 377
CourtNew Jersey Superior Court Appellate Division
DecidedJune 6, 2007
StatusPublished
Cited by4 cases

This text of 923 A.2d 338 (Cotler v. TOWNSHIP OF PILESGROVE) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cotler v. TOWNSHIP OF PILESGROVE, 923 A.2d 338, 393 N.J. Super. 377 (N.J. Ct. App. 2007).

Opinion

923 A.2d 338 (2007)
393 N.J. Super. 377

Joseph COTLER, Maxine Cotler and Richard Pierson, Plaintiffs-Appellants,
v.
TOWNSHIP OF PILESGROVE, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Argued May 8, 2007.
Decided June 6, 2007.

*339 Patrick F. McAndrew, Medford, argued the cause for appellants.

William L. Horner, Salem, argued the cause for respondent (Horner & Horner, attorneys; Mr. Horner, on the brief).

Before Judges SKILLMAN, LISA and HOLSTON, JR.

The opinion of the court was delivered by

SKILLMAN, P.J.A.D.

This appeal involves the notice requirements for adoption of a zoning ordinance under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -99. N.J.S.A. 40:55D-62.1 provides that any owner of property located within 200 feet of a proposed change in zoning classification or boundaries must be given personal notice of the amended zoning ordinance, unless the zoning change was "recommended in a periodic general reexamination of the master plan[.]" We conclude that personal notice of the amended zoning ordinance challenged in this litigation was not required, because even though the *340 changes in zoning classifications and boundaries resulting from that amendment were not specifically recommended in a reexamination report, they resulted from a periodic general reexamination of the master plan. N.J.S.A. 40:49-2.1(a) requires the published notice of a proposed zoning ordinance to contain "a brief summary of the main objectives or provisions of the ordinance[.]" We conclude that the published notice of the amended zoning ordinance challenged in this litigation did not comply with this requirement because it did not contain sufficient information concerning the nature and scope of the changes in zoning that would result from its adoption.

Pilesgrove Township is a rural, agricultural municipality in north-central Salem County with a total land area of approximately thirty-five square miles. Plaintiffs Joseph and Maxine Cotler own a 57.61 acre farm and plaintiff Richard Pierson owns an 81.93 acre farm in the Township.

Before adoption of the amended zoning ordinance challenged in this litigation, plaintiffs' properties were located in the single-family residential (SR) district of the municipality, in which one acre residential lots are a permitted use. However, as a result of the challenged rezoning, plaintiffs' properties are now located in an agricultural retention (AR-2) district, in which the minimum permitted lot size is two acres.

The planning process that culminated in adoption of the amended zoning ordinance started with the Township Planning Board's reexamination of its master plan and land development regulations. After receiving a draft report from its planner and conducting a series of work sessions, the Board adopted a resolution on January 16, 2002 approving the reexamination report. The resolution stated that although the Township's zoning ordinance was in "general conformance" with the land use element of the master plan adopted in 1994, the reexamination report had "identified a number of specific issues which require attention by the Township Planning Board to refine and/or reaffirm Township planning objectives, policies, and standards[.]"

The specific issues referred to in the reexamination report included updating the boundaries between the SR and rural residential (RR) districts and enhancing the buffers between the SR and the RR and AR-2 districts. The report also recommended that "lot size in the SR district be increased" in certain circumstances. To implement these recommendations, the Board's resolution recommended that "an update to the Township Master Plan and Land Use Ordinance be undertaken to consider the specific issues identified in the Reexamination Report[.]"

The update of the land use element of the master plan recommended in the reexamination report began shortly after the adoption of the report but was not completed until early 2005. The Planning Board then conducted two days of public hearings on the proposed revised land use element, and on February 16, 2005, the Board adopted a resolution approving the revision. This revision stated that "all boundary and classification changes to the zoning ordinance that relate to the proposed changes in the Land Use Plan are the result of a periodic general re-examination of the Master Plan pursuant to N.J.S.A. 40:55D-62.1." The revision noted that the recommended changes included a reduction in size of the SR district in the northeast corner of the municipality where plaintiffs' properties are located and creation of an AR-2 district with a minimum two acre lot size. The revised land use element also contained maps showing the locations of each of the zoning districts.

*341 Following its adoption of the new land use element, the Planning Board prepared an amended zoning ordinance to implement its recommendations. The ordinance provided for the reduction in size of the SR district and the creation of the AR-2 district, in which plaintiffs' properties are now located, as recommended in the revised land use element.

The Planning Board advised the Township Committee that "the proposed ordinance is consistent with the Township Master Plan . . . and that it will implement key provisions of the recently adopted Land Use Plan element." The Board also advised the Committee that "all of the changes to zoning district classifications and boundaries contained in proposed Ordinance No. 05-09 are recommended in the Planning Board's most recent periodic general re-examination of the Pilesgrove Township Master Plan pursuant to N.J.S.A. 40:55D-89[.]"

On June 30, 2005, the Township Clerk published notice of the second reading of the proposed amended zoning ordinance and the scheduled public hearing. No personal notice of the proposed ordinance was given to plaintiffs or other property owners. The published notice is quoted and discussed later in this opinion.

There was only limited public comment at the hearing on the proposed amended zoning ordinance, and the Township Committee voted to adopt the ordinance at the conclusion of the hearing.

Plaintiffs then brought this action in lieu of prerogative writs challenging the validity of the ordinance on the grounds that the Township had not given them the personal notice of the proposed ordinance required by N.J.S.A. 40:55D-62.1 and that the brief summary of the contents of the ordinance contained in the published notice did not comply with N.J.S.A. 40:49-2.1.

The case was brought before the trial court on cross-motions for summary judgment. The court rejected both of plaintiffs' challenges to the validity of the amended zoning ordinance and dismissed plaintiffs' complaint.

I

Plaintiffs' first argument is that the amended zoning ordinance is invalid because they were not served with personal notice of the proposed rezoning of their properties, as required by N.J.S.A. 40:55D-62.1. This section of the MLUL provides:

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 [N.J.S.A. 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. . .

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Cite This Page — Counsel Stack

Bluebook (online)
923 A.2d 338, 393 N.J. Super. 377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotler-v-township-of-pilesgrove-njsuperctappdiv-2007.