OLD ORCHARD VILLAGE HOMEOWNERS ASSOCIATION, INC. VS. MUNICIPALITY OF PRINCETON (L-0994-19, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4005-19

OLD ORCHARD VILLAGE
HOMEOWNERS ASSOCIATION,
INC.,

Plaintiff-Appellant,

v.

MUNICIPALITY OF PRINCETON,

Defendant-Respondent.
______________________________

Argued September 22, 2021 – Decided November 3, 2021

Before Judges Fuentes, Gooden Brown, and Gummer.

On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0994-19.

Robert F. Simon argued the cause for appellant (Herold
Law, PA, attorneys; Robert F. Simon, of counsel;
George W. Crimmins, on the briefs).

Anthony R. Todaro argued the cause for respondent
(Mason, Griffin & Pierson, PC, attorneys; Kevin A.
Van Hise, of counsel; Anthony R. Todaro, on the brief).

PER CURIAM
 Plaintiff Old Orchard Village Homeowners Association appeals from an

order dismissing with prejudice its action in lieu of prerogative-writs challenge

to defendant Municipality of Princeton's adoption of a rezoning ordinance

allowing the development of sixty-five affordable-housing units. Because we

agree Princeton did not act arbitrarily, capriciously, or unreasonably in adopting

the ordinance, we affirm.

I.

In 1975, our Supreme Court held that developing municipalities are under

a constitutional obligation to provide a realistic opportunity for the creation of

affordable housing. S. Burlington Cnty. N.A.A.C.P. v. Mount Laurel Twp.

(Mount Laurel I), 67 N.J. 151, 174 (1975). The Court clarified and reaffirmed

that constitutional requirement in South Burlington County N.A.A.C.P. v.

Mount Laurel Township (Mount Laurel II), 92 N.J. 158 (1983). While noting

the "widespread non-compliance with the constitutional mandate" of Mount

Laurel I, the Court in Mount Laurel II acknowledged the "municipalities around

the State that have responded to our decisions by amending their zoning

ordinances to provide realistic opportunities for the construction of low and

moderate income housing." Id. at 198, 200-01.

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 A.

In 2013, Princeton Borough and Princeton Township consolidated into the

Municipality of Princeton. Before the consolidation, the "1996 Princeton

Community Master Plan" applied to both the Borough and the Township. After

the consolidation, the Princeton Planning Board readopted the 1996 Princeton

Community Master Plan as Princeton's Master Plan.

Throughout its Master Plan, Princeton recognizes its commitment to the

development of affordable housing. The Master Plan describes Princeton's

"community character & quality of life" as including "[m]aintain[ing] a mix and

balance of uses that crosscut socio-economic lines" with a "variety of housing

. . . continually expanding to include different unit types, and sizes, so that they

are affordable to many ages and income levels." The Master Plan incorporates

the "promot[ion of] a variety of housing . . . to meet the diverse needs of its

citizens of different ages, ethnicity and income" in the Planning Board's

"mission statement." According to the Master Plan, Princeton "strives to be a

balanced community" and has a goal "meeting the community's affordable

housing obligation."

The Master Plan's Land Use Element section also enumerates Princeton's

goals, including: "[m]aintain[ing] a balanced community that offers a mix of

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land . . ."; "[g]uid[ing] future development with due regard to its impact upon

future taxes, as well as other costs that might adversely affect residents and

diminish the opportunity for low and moderate income persons to continue to

reside within the community"; and "[c]ontinu[ing] to provide the community's

fair share of affordable housing." As for "residential uses," the Land Use

Element section expressly states Princeton's land use plan "endeavors to

maintain and enhance the diversity of residential options available in Princeto n."

The Housing Element1 of the Master Plan lists as a goal "[p]rovid[ing]

Princeton's regional fair share of affordable housing for low, moderate and

middle income households." The Housing Element describes what actions

Princeton has taken in past years to provide affordable housing and what future

actions it intends to take, including rezoning particular areas. The 2008 Third

Round Fair Share Plan states "[t]he Township will continue to seek other

opportunities to increase affordable housing obligations."

B.

Like the municipalities recognized by the Court in Mount Laurel II, 92

N.J. at 200-01, as being compliant with Mount Laurel I, Princeton has amended

1
The Housing Element was amended in 2020. Unless otherwise indicated,
when discussing the Master Plan, we reference the version in existence when
Princeton adopted the ordinance at issue.
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its zoning ordinances to enable the construction of affordable-housing units.

According to the 2008 Housing Element of the Master Plan, Princeton Borough

had rezoned three properties to permit the construction of eighty-six affordable-

housing units, and Princeton Township had zoned two sites for affordable

housing and planned to rezone two areas to permit affordable housing.

On March 11, 2019, the Princeton Council introduced Ordinance 2019-

10, which had the express purpose of amending the Princeton Code and Zoning

Map to create a new affordable-housing zone: the "AH-3 Affordable Housing 3

Residential District." The new zone would "create a realistic opportunity for

the construction of low-and moderate-income housing in the Municipality of

Princeton and thereby address the municipality’s fair share housing obligation

pursuant to the New Jersey Fair Housing Act," N.J.S.A. 52:27D-301 to -329. In

the new zone, "[m]ultifamily residential developments" could contain "a

maximum of [sixty-five] affordable family dwelling units . . . in a one hundred

percent affordable housing development."

The ordinance had the effect of rezoning the property identified on

Princeton's tax maps as Block 901, Lot 21 (the property) from the S-2 Service

District No. 2, which had permitted uses ranging from freight yards to motels,

to the AH-3 Affordable Housing-3 District. The property is a three-acre vacant

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lot, previously used as an animal shelter. In 2017, the Planning Board approved

a site plan for a two-story, 25,000 square-foot office building on the property.

According to the property owner, market conditions created "very little demand"

for an office building in that area. A developer subsequently approached the

property owner and suggested demand would be greater for housing, especially

affordable housing. The property has a street address of 900 Herrontown Road

and is bounded by Herrontown Road, Mt. Lucas Road, and Old Orchard Lane.

Plaintiff is a homeowner's association that owns seven acres located on Old

Orchard Lane, adjacent to the property.

Pursuant to N.J.S.A. 40:55D-26(a) and -64, the Council referred the

proposed ordinance to the Planning Board for its review. On March 21, 2019,

the Planning Board held a public meeting regarding the proposed ordinance.

Princeton's Planning Director Michael La Place opined that creating a new

affordable-housing zone was consistent with the goals of the 2017

Reexamination Report regarding the Master Plan and stated the Master Plan and

the 2017 Reexamination Report contained language about developing more

affordable housing. Carl Peters, who identified himself as a planner appearing

on behalf of someone who lived on Old Orchard Lane, questioned how the

proposed ordinance "fit" within the Master Plan, focusing on the density

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permitted by the proposed ordinance. He suggested reducing the maximum

number of units per acre allowed in the ordinance.

The Board's attorney Gerald Muller opined the proposed ordinance was

consistent with the Master Plan. He also suggested that if the Council adopted

the ordinance, to "cover[] all bas[e]s," it could identify its reasons in a resolution

pursuant to N.J.S.A. 40:55D-62(a), which enables a governing body to adopt a

zoning ordinance inconsistent with a master plan if it sets forth its reasons for

doing so in a resolution. After Muller reviewed some proposed changes to the

ordinance language, the Planning Board voted unanimously that the ordinance

with those proposed changes was consistent with the Master Plan.

In a written memorandum certified by the Planning Board's secretary as

the "ordinance (AH3) review memorandum," Planning Director La Place

confirmed the board's recommended language changes and findings, stating:

The Board found that the proposed ordinance was
consistent with the Master Plan as the Land Use
Element cites as one of its goals "Continue to provide
the community’s fair share of affordable housing." The
2017 Reexamination report further supports the Master
Plan goals and cited the need to provide affordable
housing units as the report also recommends: "Future
affordable housing sites will need to be based upon
smart growth principles[]" and "Develop zoning
strategies for providing and integrating affordable
housing into the community."

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Noting Peters's assertion that the proposed ordinance conflicted with "other

Master Plan goals," La Place also referenced the Board attorney's suggestion

that the Council prepare a resolution identifying the reasons supporting the

adoption of the ordinance in accordance with N.J.S.A. 40:55D-62(a).

After considering and agreeing with the suggested amendments and

reintroducing the revised proposed ordinance, the Council conducted a public

hearing regarding the ordinance on April 8, 2019. Planner Peters and an attorney

appeared on behalf of plaintiff. Peters recognized that creating affordable

housing was one of the concerns of the Master Plan but again asserted the

proposed ordinance was not consistent with the Master Plan. The Council's

planner testified, comparing the concerns raised by Peters and the potential

benefits of the proposed ordinance, including that it would generate less traffic

than the previously approved office-building use and would provide Princeton

with an opportunity to meet its constitutional obligation to provide affordable

housing. He concluded the choice was "obvious."

After hearing extensive public comment, the Council voted unanimously

to adopt the proposed ordinance and a resolution memorializing its reasons for

adopting the ordinance, "notwithstanding any potential inconsistencies with the

Princeton Master Plan":

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• Princeton has a constitutional obligation to create a
realistic opportunity for the development of its fair
share of the region's need for low- and moderate-
income (affordable) housing.

• Princeton is under the jurisdiction of the Superior
Court of New Jersey, Law Division, and is working
with the Fair Share Housing Center, a court-
appointed special master, and a court-appointed
mediator to develop a compliance plan—including a
housing element and fair share plan and
implementing ordinances—to meet its third round
affordable housing obligation.

• The [property] is a ±three-acre vacant parcel located
on the corner of Herrontown Road and Mt. Lucas
Road, abutting residential development to east and
south, and within walking distance of New Jersey
State Highway Route 206, on which New Jersey
Transit operates a bus route.

• A reputable developer of affordable housing has
expressed a desire to develop the site with sixty-five
units of safe, attractive housing that will be
affordable to very low, low, and moderate-income
households.

• The development will consist entirely of affordable
units, in contrast to traditional "inclusionary"
developments in which only twenty percent (or less)
of the total number of units are affordable, and the
developer has not sought any financial contributions
from the municipality.

• The property is currently in the S-2 Service 2 Zone;
in order for the property to be developed as
proposed, a change in zoning is needed.

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 • Ordinance No. 2019-10 creates the necessary zoning
to allow the property to be developed with up to
sixty-five units of safe and attractive residential
housing, all of which will be affordable to very low,
low, and moderate income households and that will
help to address Princeton's third round affordable
housing obligation.

• Consistent with the land use element of the Master
Plan and the 2017 Master Plan Reexamination
Report, the zoning change effectuated by the
adoption of Ordinance No. 2019-10 will help
Princeton "continue to provide the community's fair
share of affordable housing" in a manner "based
upon smart growth principles" and in a location that
is within walking distance of shops, services, and
public transportation and that is not isolated from the
balance of the community.

• To the extent that the zoning standards being created
by Ordinance 2019-10 are inconsistent with other
goals and provisions of the Master Plan, such
inconsistencies are outweighed by the opportunity
[to] create a substantial number of safe and attractive
affordable housing units in an appropriate location
and in furtherance of Princeton's constitutional
obligation.

On December 18, 2019, defendant executed a settlement agreement with

Fair Share Housing Center (FSHC), identifying defendant's affordable housing

obligation and indicating how defendant would satisfy that obligation. Plaintiff

does not dispute that the construction of affordable-housing units on the property

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was included in defendant's compliance plan. After a fairness hearing, the trial

court approved the settlement in a February 20, 2020 order.

C.

Six weeks after the Council adopted the ordinance, plaintiff filed an action

in lieu of prerogative writs challenging its validity. Plaintiff alleged the

ordinance constituted impermissible spot-zoning and was inconsistent with the

Master Plan. Plaintiff also contended defendant had "failed to provide adequate

reasons in a resolution for acting inconsistent with" the Master Plan.

After conducting a bench trial, the trial court in a decision placed on the

record on May 19, 2020, held plaintiff had failed to establish defendant acted in

an arbitrary, capricious, or unreasonable manner by adopting the ordinance after

considering plaintiff's concerns and finding the ordinance created "the

possibility for an attractive[,] very beneficial development that would further

the goal of [defendant] . . . reaching its affordable housing requirements." The

trial court found that by providing affordable housing, the ordinance promoted

a use "explicitly provided" in the Master Plan and was consistent with the Master

Plan. The trial court saw nothing wrong with the Council's additional conclusion

pursuant to N.J.S.A. 40:55D-62(a) that even if inconsistencies existed, "the need

for affordable housing and a hundred percent affordable housing as done

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carefully as this ordinance was designed outweighed any of the inconsistences

that had been raised." The trial court rejected plaintiff's spot-zoning argument,

finding "affordable housing has a general benefit to the general welfare." On

May 20, 2020, the trial court issued an order dismissing the complaint with

prejudice.

On July 9, 2020, the Planning Board adopted Princeton's Third Round

Housing Plan Element and Fair Share Plan (HEFSP), and the Council endorsed

it on July 13, 2020. Plaintiff does not dispute that HEFSP amended the Master

Plan to provide for the implementation of defendant's affordable -housing

compliance plan under its settlement with FSHC, including the construction of

affordable-housing units on the property pursuant to the ordinance.

II.

On appeal, plaintiff argues the trial court erred in finding the adoption of

the ordinance was consistent with the Master Plan, the Land Use Element of the

Master Plan, and the Housing Element and Fair Share Plan, faulting the trial

court for, among other things, considering the 2017 Reexamination Report.

Plaintiff contends the trial court erred in finding the Council had complied with

N.J.S.A. 55D-62(a), faulting the Planning Board for failing to conduct a

comprehensive consistency review and the Council and trial court for failing to

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"identify and analyze specific substantial inconsistencies with the Master Plan

and to determine consistency with the Housing Element." Plaintiff also argues

the trial court erred in declining to invalidate the ordinance as spot zoning.

In response, defendant asserts the trial court correctly found the ordinance

was consistent with the goals of the Master Plan and its adoption was a valid

exercise of defendant's authority and correctly rejected defendant's spot-zone

argument. Finally, defendant also contends its 2020 implementation of HEFSP

renders plaintiff's arguments moot.

A.

The "power to zone is fundamentally an exercise of the State's police

power." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 252 (2015). "The 1947

New Jersey Constitution vested that power in the Legislature and authorized the

Legislature to delegate the zoning power to municipalities" through its

enactment of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163.

Ibid.

Under the MLUL, municipalities have the authority both to enact and

amend zoning ordinances. See N.J.S.A. 40:55D-62(a); see also Riya Finnegan

LLC v. Twp. Council of S. Brunswick, 197 N.J. 184, 191 (2007). A municipality

may amend an ordinance "as it may deem necessary and proper for the good

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government, order and protection of persons and property, and for the

preservation of the public health, safety and welfare of the municipality and its

inhabitants." N.J.S.A. 40:48-2; see also State v. Clarksburg Inn, 375 N.J. Super.

624, 633 (App. Div. 2005). A municipality may amend a zoning ordinance while

a site-plan application is pending or in direct response to a pending application.

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378-79

(1995); see also House of Fire Christian Church v. Zoning Bd. of Adjustment of

Clifton, 379 N.J. Super. 526, 541-42 (App. Div. 2005).

Our role in reviewing zoning ordinances is limited. Zilinksy v. Zoning

Bd. of Adjustment of Verona, 105 N.J. 363, 367 (1987). We don’t judge the

wisdom of a zoning change. Kaufmann v. Planning Bd. for Warren, 110 N.J.

551, 558 (1988). Land-use decisions "are entrusted to the sound discretion of

the municipal boards," ibid., because local officials "are best suited to make

judgments concerning local zoning regulations" due to their familiarity with

their communities, Pullen v. Twp. of S. Plainfield Planning Bd., 291 N.J. Super

1, 6 (App. Div. 1996).

Accordingly, we presume a governing municipal body's actions are valid.

See Griepenburg, 220 N.J. at 253 (noting "well-established" principle that a

presumption of validity insulates a zoning ordinance from attack); Clarksburg

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Inn, 375 N.J. Super. at 632 (holding courts review a municipal ordinance with a

"presumption of validity and reasonableness"). We defer to a local board's

actions and factual findings as long as they are supported by substantial evidence

in the record and are not arbitrary, unreasonable, or capricious. Jacoby v.

Zoning Bd. of Adjustment of Borough of Englewood Cliffs, 442 N.J. Super. 450,

462 (App. Div. 2015); see also Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562,

597 (2005) (“public bodies, because of their peculiar knowledge of local

conditions, must be allowed wide latitude in their delegated discretion”);

Rowatti v. Gonchar, 101 N.J. 46, 52 (1985) (holding a board's factual

determinations are entitled to "great weight" and should not be disturbed "unless

there is insufficient evidence to support them"). However, a local board's "legal

determinations are not entitled to a presumption of validity and are subject to de

novo review." Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J. Super.

189, 197 (App. Div. 2009).

The party challenging an ordinance must overcome its presumption of

validity by establishing the board's decision to enact the ordinance was "clearly

arbitrary, capricious or unreasonable, or plainly contrary to fundamental

principles of zoning or the [zoning] statute." Manalapan, 140 N.J. at 380

(quoting Bow & Arrow Manor, Inc. v. Town of West Orange, 63 N.J. 335, 343

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(1973)); see also Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington,

194 N.J. 223, 256 (2008). To overcome the presumption of validity, the

challenging party must demonstrate an ordinance's invalidity clearly and

convincingly. Cona v. Twp. of Washington, 456 N.J. Super. 197, 215 (App.

Div. 2018). If an ordinance is "debatable, it should be upheld." Riggs v. Long

Beach, 109 N.J. 601, 611 (1988).

In deciding a challenge to a zoning ordinance, a court considers the

following "objective test for an ordinance's validity":

First, the ordinance must advance one of the purposes
of the [MLUL] as set forth in N.J.S.A. 40:55D-2.
Second, the ordinance must be substantially consistent
with the land use plan element and the housing plan
element of the master plan or designed to effectuate
such plan elements, unless the requirements of that
statute are otherwise satisfied. Third, the ordinance
must comport with constitutional constraints on the
zoning power, including those pertaining to due
process, equal protection, and the prohibition against
confiscation. Fourth, the ordinance must be adopted in
accordance with statutory and municipal procedural
requirements.

[Griepenburg, 220 N.J. at 253 (quoting Riggs, 109 N.J.
at 611-12).]

Plaintiff appears to challenge the second and fourth prongs of that test.

As to the second prong, the MLUL mandates only substantial consistency,

"not . . . absolute consistency," between a master plan and a zoning ordinance.

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Myers v. Ocean City Zoning Bd., 439 N.J. Super. 96, 104 (App. Div. 2015).

"[T]he concept of 'substantially consistent' permits some inconsistency,

provided it does not substantially or materially undermine or distort the basic

provisions and objectives of the Master Plan." Manalapan, 140 N.J. at 384. A

"governing body's determination that its ordinance is substantially consistent is

entitled to great weight and deference." Myers, 439 N.J. Super. at 104; see also

Manalapan, 140 N.J. at 383.

As to the fourth prong, a governing body may adopt an amendment to a

zoning ordinance that is inconsistent with the master plan "by affirmative vote

of a majority of the full authorized membership of the governing body, with the

reasons of the governing body for so acting set forth in a resolution and recorded

in its minutes." Riya Finnegan LLC, 197 N.J. at 192 (quoting N.J.S.A. 40:55D-

62(a)); Willoughby v. Planning Bd. of Twp. of Deptford, 326 N.J. Super. 158,

165 (App. Div. 1999) ("Inconsistency between a zoning amendment and the

master plan is not fatal to a zoning amendment. It merely triggers two

procedural requirements: a majority vote of the full authorized membership of

the governing body and a statement of reasons."). However, the "owner of

rezoned property has the right to challenge the adequacy of the reasons

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expressed by the governing body for zoning it in a manner inconsistent with the

[m]aster [p]lan." Riya Finnegan LLC, 197 N.J. at 193.

B.

We agree the ordinance furthers the goals of the Master Plan and is

substantially consistent with it. Throughout its Master Plan, including in the

Land Use Element and Housing Element sections, Princeton repeatedly

describes itself as a community dedicated to offering a variety of housing to

meet the needs of citizens from diverse socio-economic backgrounds and affirms

again and again its commitment to the development of affordable housing. In

their respective public meetings on the ordinance, the Planning Board and

Council considered at length the comments made in favor of and against the

adoption of the ordinance, including the arguments of plaintiff's attorney and

planner regarding inconstancies in bulk standards and density. As the trial court

found:

[Township officials] wanted to make it the best possible
development for affordable housing in Princeton. They
did not ignore planning concerns.

....

[T]he Council in its adoption of the resolution of the
ordinance considered the inconsistencies in terms of the
bulk standard, the density, the . . . height of the
buildings.

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 And, nonetheless, determined that the need for
affordable housing and a hundred percent affordable
housing as done carefully as this ordinance was
designed outweighed any of the inconsistencies that
had been raised . . . .

And so, . . . the benefit of . . . affordable housing
and, also, attention . . . to planning principals. And, so,
this isn't simply Princeton saying affordable housing,
and we're shutting our eyes to everything else. It's
Princeton saying we need affordable housing. We have
limited vacant property. And we have a reputable
developer that's come forward with, yes, it's a small
site, but a small site that can be configured to make an
attractive affordable housing development of [sixty-
five] units. It's consistent with our commitment . . . to
provide affordable housing and to do it in a way that
benefits the community and anyone who's going to live
in . . . this particular project.

We see no reason to set aside the "great weight and deference," Myers, 439 N.J.

Super. at 104, owed to the Council's determination that the ordinance is

substantially consistent with the Master Plan.

Accepting plaintiff's argument would require absolute — not substantial

— consistency with a master plan and have the effect of treating initial zones

and zoning determinations as if they were carved in stone. That the Fair Share

Plan of 2008 "contain[ed] detailed plans for developing affordable house in the

S-2 Zone" and that the property at issue was originally designated as being in an

S-2 zone does not prevent Princeton from seeking and creating additional

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opportunities for the construction of affordable housing. Indeed, the Supreme

Court in Mount Laurel II praised municipalities that had amended their zoning

ordinances, as Princeton did here, to enable the development of affordable-

housing units consistent with the constitutional mandate of Mount Laurel I. Like

the ordinance in Manalapan, 140 N.J. at 384, this ordinance does not so

"undermine or distort the basic provisions and objectives of the Master Plan

. . . ." to warrant its invalidation.

Plaintiff faults the Council and trial court for referencing the 2017

Reexamination Report. We see no reversible error in the Council's and trial

court's references to the 2017 Reexamination Report given the clear substantial

consistency of the ordinance with the Master Plan.

C.

Having determined the ordinance was substantially consistent with the

Master Plan, the Council did not need to go any further. Nevertheless, following

the suggestion of the Planning Board's attorney to "cover[] all bas[e]s," the

Council chose to set forth in a resolution its reasons for adopting the ordinance

pursuant to N.J.S.A. 40:55D-62(a). We see no procedural infirmity with that

additional though unnecessary step.

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 After conducting a public hearing in which it considered commentary

regarding the ordinance, including the statements by plaintiff's planner, the

Planning Board issued a review memorandum in which it stated its finding that

the proposed ordinance was consistent with the Master Plan. It also referenced

plaintiff's planner's analysis that the proposed ordinance conflicted "with other

Master Plan goals and Land Use objectives" and statements "citing high density

that is not compatible with the surrounding area," which was the clear focus of

plaintiff's planner's presentation to the Board.

Plaintiff faults the Planning Board for referencing only the focus of

plaintiff's planner's statements before the Board. But the Council clearly had an

opportunity to consider every opinion plaintiff's planner had concerning any

inconsistency when he testified during the Council's public hearing. Having

heard all testimony, the Council ultimately concluded the proposed ordinance

was substantially consistent with the Master Plan. Contrary to plaintiff's

argument, the Council's conclusion does not demonstrate a failure to consider

plaintiff's planner's opinions; it demonstrates the Council's disagreement with

them.

In setting forth its reasons for adopting the ordinance in a resolution, the

Council did not negate or muddy its determination that the ordinance was

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substantially consistent with the Master Plan. It simply was taking a "belts and

suspenders" approach in determining the validity of the ordinance, addressing

both the "substantially consistent" and "inconsistent" provisions of N.J.S.A.

50:55D-62(a). Although we need not reach this issue having agreed the

proposed ordinance was substantially consistent with the Master Plan, we also

agree the Council adequately explained its reasons for adopting the ordinance

pursuant to N.J.S.A. 40:55D-62(a).

D.

We likewise reject plaintiff's spot-zoning argument. Our Supreme Court

has defined impermissible spot zoning as "the use of the zoning power to benefit

particular private interests rather than the collective interests of the community."

Taxpayers Ass'n of Weymouth Twp., Inc. v. Weymouth Twp., 80 N.J. 6, 18

(1976); see also Riya Finnegan LLC, 197 N.J. at 195.

In determining whether an ordinance constitutes impermissible spot

zoning, courts ask "whether the particular provision of the zoning ordinance is

made with the purpose or effect of furthering a comprehensive scheme or

whether it is designed merely to relieve a lot or lots from the burden of a general

regulation." Riya Finnegan LLC, 197 N.J. at 196 (quoting Palisades Props., Inc.

v. Brunetti, 44 N.J. 117, 134 (1965)). Enacting an ordinance proposed by and

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benefitting a private party is not impermissible spot zoning if it was enacted for

the general welfare as part of a comprehensive plan. Weymouth Twp., 80 N.J.

at 18; see also Gallo v. Mayor and Twp. Council, 328 N.J. Super. 117, 128 (App.

Div. 2000) (rejecting argument that re-zoning a property to allow higher density

for development by a private party was impermissible spot zoning given that it

was consistent with a comprehensive plan to benefit the community and was not

enacted to benefit only certain individuals).

As confirmed by the reasons set forth by the Council in its resolution, the

Council adopted the ordinance not to benefit a private party but because it gave

Princeton "the opportunity [to] create a substantial number of safe and attractive

affordable housing units in an appropriate location and in furtherance of

Princeton's constitutional obligation" and in a way that was "[c]onsistent with

the land use element of the Master Plan and the 2017 Master Plan Reexamination

Report." The ordinance enables Princeton to fulfill its goal, as set forth in the

Land Use Element section of its Master Plan, "to maintain and enhance the

diversity of residential options available in Princeton." That is not

impermissible spot zoning.

Affirmed.

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