dissenting.
While I have no quarrel with the objective of Fair Haven’s zoning ordinance “to preserve a diversity of housing stock” within the municipality, I conclude that it has chosen a means to do so that is in flat violation of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129. While purporting to establish a table of “floor area ratios” as permitted by the MLUL, N.J.S.A. 40:55D-4, the ordinance rigidly caps the size of buildings at 2,200 square feet regardless of the size of the lot. Indeed, in this case, the owner of lots 9,066 square feet in size could not persuade the Planning Board to accord them a modest increase in house size to 2,590 square feet.
Thus, at Fair Haven’s prescribed floor area ratio of .4, if an owner has a 5,000 square foot lot (the minimum lot size permitted in the zone), the owner may erect a 2,000 square foot house. If the owner has a 5,500 square foot lot, he or she may erect a 2,200 square foot house. But if an owner has a lot of 7,500 square feet, the house is also limited to 2,200 square feet, notwithstanding that, but for the capping provision, the owner might have built a house of 3,000 square feet.
*333Thus, for all practical purposes, in the latter example Fair Haven has arbitrarily taken 2,000 square feet from the total area of the lot for purposes of calculating the size of a permitted house. In so doing, in my opinion, it has run afoul of the statutory definition of floor area ratio. That definition is: “[T]he sum of the area of all floors of buildings or structures compared to the total area of the site.” N.J.S.A. 40:55D-4.
We have expressly held in a somewhat different context that such manipulation of the definition of floor area ratio is impermissible and ultra vires. In Manalapan Builders Alliance, Inc. v. Township Committee of the Township of Manalapan, 256 N.J.Super. 295, 606 A.2d 1132 (App.Div.1992), the municipality adopted a floor area ratio scheme which, for quite legitimate environmental reasons, required developers to subtract from the total square footage of their lots environmentally sensitive areas to calculate the permitted size of the house. We said:
The MLUL is explicit in its definitions. N.J.S.A. 40:55D-4 defines “density” as “the permitted number of dwelling units per gross area of land to be developed.” Density restrictions affect only the number of individual residential units that may be construed on a tract of land. Commercial Realty and Resources Corp. v. First Atlantic Properties Co., 122 N.J. 546, 561, 585 A.2d 928 (1991). N.J.S.A. 40:55D^ defines “floor area ratio” as “the sum of the area of all floors of buildings or structures compared to the total area of the site.” Floor-area restrictions affect the aggregate size, i.e., height, width and depth, of structures in relation to the area of the land on which they are to be built. Commercial Realty, supra, 122 N.J. at 561, 585, A.2d 928. N.J.S.A 40:55D-4 also defines “lot” as “a designated parcel, tract or area of land established by a plat or otherwise, as permitted by law and to be used, developed or built upon as a unit.” And, N.J.S.A. 40:55D 6 defines “residential density” as “the number of dwelling units per gross acre of residential land area including streets, easements and open space portions of a development.”
The Omnibus Ordinance involved in this case, however, allows the calculation of lot and floor areas only after they are reduced by certain land features specified in the Ordinance. Consequently, as plaintiffs correctly note, the statutory definition of “floor area ratio” is changed to net area of the site and “lot” is changed to a net unit. When the Ordinance is applied to a particular parcel, the definitions of “density” and “residential density” are changed from gross area to net area. In our view, the trial judge was correct in finding Section I void as ultra vires and beyond the local legislative power.
[Manalapan, supra, 256 N.J.Super. at 305, 606 A.2d 1132.]
*334Furthermore, Manalapan, as Fair Haven here (as well as the majority opinion), sought refuge in N.J.S.A 40:55D-65 to draw an exception to the statutory definitions to serve a salutary zoning objective. But we stated:
[Manalapan] contends that, pursuant to N.J.S.A 40:55D-65b, it was entitled to adopt and enact other formulas to accomplish the purposes and goals set forth in its ordinances, and that Section I falls within the definition of these other formulas and ratios since it was adopted to control development on environmentally sensitive lands. The Township claims that there is no individual flexibility to zone if it must narrowly follow the definitions as set out in the MLUL. We disagree.
N.J.S.A. 40:55D-65b permits a zoning ordinance to:
Regulate the bulk, height, number of stories, orientation, and size of buildings and other structures; the percentage of lot or development area that may be occupied by structures; lot sizes and dimensions; and for these purposes may specify floor area ratios and other ratios and regulatory techniques governing the intensity of land use and the provision of adequate light and air, including, but not limited to the potential for utilization of renewable energy sources.
Nowhere, however, does the MLUL allow municipalities to change the definitions of terms in the statute in order to control development or promote environmental protection. N.J.S.A 40:55D-3 declares that the prescribed definitions are to be used for purposes of the MLUL, “unless the context [used in the Act] clearly indicates a different meaning.” Moreover, N.J.S.A. 40:55D-2d declares that one of the purposes of the MLUL is “[ t]o 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.”
[Id. at 306, 606 A.2d 1132.]
Of like opinion is Crow-New Jersey 32 Ltd. Partnership v. Township of Clinton, 718 F.Supp. 378 (D.N. J.1989). If redefining floor area ratio for good environmental reasons is impermissible, so too, in my opinion, is redefining it to preserve a diversity of housing stock, as worthy a goal as that might be. Surely, wisdom can devise, means to accomplish that end which do not do violence to a basic definition provided in the MLUL.
I am, therefore, constrained to dissent. I would rule that the ordinance at issue is ultra vires and declare so much of it which purports to cap the size of structures on a given size lot as void and unenforceable.