Manalapan Realty, L.P. v. Township Committee of Manalapan

WEFING, J.S.C.,

temporarily assigned, concurring in part and dissenting in part.

My colleagues have concluded that the amendments to the Manalapan Township zoning ordinance passed on July 24, 1991 *16represent a proper exercise of the municipality’s zoning power and are not inconsistent with the master plan of Manalapan Township. They have also recognized that the amendments at issue may be over-broad in scope and have thus remanded the matter to the trial court for further hearings on that issue. Since I am unable to agree that the amendments at issue are not inconsistent with the Township’s master plan, since I view additional hearings on the question of overbreadth as unnecessary based upon the record presented, and since I do not consider the amended ordinance in its present form to have a reasonable relationship to valid land use objectives, I dissent.

I find it necessary to set forth some further background to clarify the context in which the issues arise and the reasons for the result which I have reached.

The property in question is located on Route 9 in Manalapan Township, and is within the Township’s C-l zone. The Manalapan Township zoning ordinance describes that zone in the following manner:

The purpose of this zone is to establish several locations within the Township within which major shopping centers are permitted, providing the full array of retail and service uses designed to serve all residents of the township as well as the regional population.

Although the C-1 zone spans more than 100 acres, it is, in reality, comprised solely of two tracts of land, one of which is at issue in this matter.

The subject tract is owned by plaintiff Manalapan Realty. The property is improved with a shopping center of some 186,000 square feet of retail space which is commonly known as the Manalapan Mall. Plaintiff prepared plans to significantly enlarge and improve this shopping space by converting it to a regional shopping center in excess of 460,000 square feet which would be renamed the Manalapan Epicenter. A part of this proposal was that one of the “anchor” stores in this newly enlarged shopping center would be Home Depot.

*17In October of 1990, plaintiff Manalapan Realty filed an application for preliminary site plan approval for the construction of this enlarged shopping center, and various meetings were held between its representatives and those of the Township and the Planning Board to discuss the proposal. In May and June of 1991, the Planning Board commenced public hearings on the proposal which generated intense public opposition.

’ On May 23, 1991, shortly before these public hearings on Manalapan Realty’s site plan application took place, the Township of Manalapan adopted a revised master plan addressing the planning and zoning concerns of the community to guide its future development. Significantly, at the time the master plan was under consideration, Manalapan Realty’s application for site plan approval had already been filed. According to the testimony at trial, both the Planning Board and members of the Township Committee were aware, as early as September of 1990, that Home Depot was a proposed anchor tenant for the enlarged mall. Nonetheless, the master plan, adopted months thereafter, did not retreat from the concept of a C-1 zone which provided a full array of retail outlets to meet regional shopping needs in light of this contemplated installation.

It must also be noted that at the time the master plan was adopted, a Channel Home Center was in existence on the other tract within the C-1 zone. We are informed that the building occupied by Channel has subsequently been converted to a Grand Union. The reasons for this conversion are not contained within the reeord.

The master plan recognized the C-1 zone as a regional commercial shopping center district. The plan described this zone as “presently developed as the Manalapan Mall with expansion area available for mixed commercial uses.” The master plan further noted that “the Route 9 corridor (within which the subject property is located) has been planned for development of an economic base that will generate substantial employment opportunity for the community.”

*18The Manalapan master plan reflected an understanding that the nature of the commercial development -within the Route 9 corridor was not necessarily appropriate for the other commercial districts within the Township. The Manalapan zoning ordinance created four different commercial zones within the Township. Pursuant to the ordinance the C-1 zone was created for the particular purpose of accommodating major regional shopping centers. The C-1 zone can be distinguished from the C-2 zone which was designed to “provide convenient shopping for the general neighborhoods in which they are located without attracting regional traffic,” and the C-3 highway district zone which created “areas on or adjacent to major roads within which uses are devoted to transient-oriented activities.” The Township also established a C-2M zone which permitted certain multi-family development in a neighborhood business zone. Finally, the Township also had four “limited business districts” within which the master plan imposed strict restrictions on business and commercial development.

As noted, the public hearings on Manalapan Realty’s proposal to enlarge the existing mall generated intense public opposition, which focused on the proposed inclusion of Home Depot within the shopping center. Indeed, police presence was required during at least one of the Planning Board meetings to restrain the opponents to plaintiffs application. Among the concerns expressed by •the objectors were that it would generate excessive traffic, and that it could not be considered a retail use. This latter rested upon Home Depot’s self-advertisement as a warehouse and the fact that some portion of Home Depot’s business served the needs of contractors and tradesmen, as opposed to retail consumers.

On July 10, 1991, two months after the adoption of the master plan and the commencement of the public hearings on Manalapan Realty’s proposal, two amendments to the Manalapan Township zoning ordinance were introduced before the Manalapan Township committee. Both of the amendments dealt with the permitted uses within the C-1 zone. The first amendment identified as permitted the following uses:

*19Retail stores, shops and markets including establishments engaged in the selling of paint, glass, wallpaper, or hardware items for household use, but not including any establishment engaged in the sale of lumber or building materials or storing, displaying, or selling materials outside a completely enclosed building.

The second proposed amendment defined building materials for purposes of the zoning ordinance as follows:

Materials that can be arranged, united or joined to construct a building or structure. Such materials include, but are not limited to, rough or dressed lumber, millwork, roofing, shingles, wallboard, molding, plywood, sheetroek, bricks, doors, windows, paneling, concrete block, tiles, cabinets, or plumbing fixtures.

At the first meeting in which the Township committee considered these amendments, the Township attorney expressed his own view that the ordinances were inconsistent with the recently adopted master plan. The amendments were forwarded to the Planning Board for its recommendation pursuant to N.J.S.A. 40:55D-26 and N.J.S.A. 40:55D-64. On July 18, 1991, eight days later, the Planning Board, with little or no discussion, approved the amendments to the zoning ordinance as consistent with the master plan, and they were subsequently passed by the Township on July 24. Within fourteen days, the amendments to the zoning ordinance brought plaintiffs application, to the extent that it was structured around inclusion of a Home Depot, to a halt.

My colleagues conclude that these two amendments are not inconsistent with the Township’s master plan, but I am unable to concur with that analysis. The master plan recognized as one of its objectives the maintenance and attraction of beneficial commercial uses, and further designated the Cl zone as “available for mixed commercial uses.” The Township’s zoning ordinance, by its own terms, created this zone specifically for the provision of a full array of retail uses. An amendment to the zoning ordinance which restricts the goods that can be sold in this zone hardly promotes the objective of providing a full array of retail uses. The result of the amendment is to prohibit within the broadest of the commercial zones the sale of certain goods which would be permitted within the more narrow C-2 zone which specifically lists hardware, plumbing supplies and electric appliance stores as permitted uses.

*20The limited nature of my disagreement with my colleagues should be noted. A portion of the amended ordinance precluded within the C-l zone “any establishment ... storing, displaying, or selling materials outside a completely enclosed budding.” I agree that such a provision “clearly serves legitimate planning objectives.” (Opinion at 9, 639 A.2d at 322).

I perceive the balance of the amended ordinance, banning the sale of building supplies within the C-1 zone, as fundamentally irreconcilable with the Township’s master plan, which had been adopted just two months prior to the amendments at issue. Since the passage of the amended ordinance did not comply with the requirements of N.J.S.A. 40:55D-62(a), I consider it invalid.

My colleagues further conclude that the scope of the definition of building materials may be too broad. Plaintiff Manalapan Realty contends that the ordinance is “over-inclusive,” pointing out that a small store selling ceramic tile or kitchen cabinets is as prohibited as a Home Depot, and my colleagues propose to send the matter back for further hearings. I believe this is unnecessary since the trial judge concluded that, even against the backdrop of the presumption of validity afforded municipal ordinances, there was no rational relationship between the ordinance amendments and the alleged evils sought to be addressed. To remand the matter for further hearings would, in my view, improperly afford the Township with a second opportunity to offer belated justifications for a defective ordinance. This matter has already consumed six trial days. I see no objective value to any further hearings.

Objectors to this proposed center noted many concerns, such as the increase in truck traffic at early hours and the potential for safety hazards because of the manner in which Home Depot conduct its operations. I do not denigrate the seriousness of those concerns. They are not addressed, however, by an ordinance which bans the sale of faucets or tiles. If the Township wishes to address and alleviate those concerns, it should do so by an ordinance which focuses upon those problems, rather than an *21outright ban of the sale of certain prescribed goods in the area it has denominated as appropriate for regional commercial shopping centers.