Riggs v. Township of Long Beach

*618HANDLER, J.,

concurring.

The Court invalidates Long Beach ordinances 81-1C and 83-9C (the two identical zoning amendments at issue) on the grounds that they do not have a valid purpose and in fact were enacted to enable the Township to acquire the property at less than its fair market value. While I concur with its conclusion that the ordinances should be invalidated and that the Riggs’ property should be valued in the condemnation proceedings as if it were zoned R-50,1 do not think it is necessary to walk the fuzzy line between motive and purpose to reach this result. In my opinion the ordinance is invalid because it fails to comply with the standards requiring conformity with comprehensive planning as required by the Municipal Land Use Law. N.J.S.A. 40:55D-1 to -112.

Land-use planning is a prominent element of zoning under current law. The role of planning under the current zoning statute is . in sharp contrast to the practice under the previous zoning act. Prior to the enactment of the Municipal Land Use Law (L. 1975 c. 291), there was only a loose, almost precatory requirement that a zoning ordinance reflect sound planning. All that the act demanded was that a zoning ordinance be designed to further at least one of a number of enumerated purposes, and be in accordance with a “comprehensive plan.” N.J.S.A. 40:55-32. However, the term “comprehensive plan” was something of a misnomer. It was not specifically defined by statute and it did not denote rigorous or systematic planning as an actual concomitant condition of a zoning ordinance. The “comprehensive plan” under the old act was not an actual blueprint for development and did not approximate a “master plan.” See: Cunningham, “Control of Land Use in New Jersey by Means of Zoning,” 14 Rut.L.Rev. 37, 54 (1959). To determine whether a particular zoning ordinance was “in accordance with a comprehensive plan,” courts would inquire as to whether the municipality’s entire zoning scheme, including the challenged ordinance, could be considered “an integrated product of a rational process.” See Kozesnik v. Montgomery Tp., 24 N.J. *619154, 166 (1957). Such a “rational process” could be inferred from diverse elements or sources, such as filed maps, other ordinances relating to land use, and regulatory elements touching on diverse matters such as public safety and transportation. Thus, a “comprehensive plan” served to describe a result rather than a process.

This legislative scheme often led to zoning enactments that reflected little or no actual planning. See Pop Realty Corp. v. Springfield Tp. Bd. Adj., 176 N.J.Super. 441, 448 (Law Div. 1980) (discussing planning prior to the enaction of the Municipal Law Use Law). Further, municipalities were not even required to prepare or adopt a master plan, and even if a master plan was adopted it did not place any restrictions on the municipal governing body, which was free to disregard the plan in the adoption of zoning ordinances. In short, the adoption of a master plan by a municipality had no legal consequences. Cochran v. Summit Planning Bd., 87 N.J.Super. 526, 535 (Law Div.1965).

In contrast, the Municipal Land Use Law enhances the role of planning in land use regulation and zoning. This reflects one of the primary purposes of the legislation, “to achieve a better coordination of land use planning and regulation,” Report on S.3054 by the County and Municipal Government Committee, 1 (1975), by establishing clearer standards for the evaluation of municipal land use regulation. Under the Municipal Land Use Law “of particular importance [is] the requirement for a stricter conformity between the master plan, official map, and zoning ordinances.” Id. at 2.

This heightened role of planning is reflected in several ways. Under the Municipal Land Use Law, a prerequisite of the exercise of the zoning power by a municipality is the preparation and adoption of a master plan. See N.J.S.A. 40:55D-62. In addition, the envisioned master plan is a much more detailed, rigorous and systematic exercise in planning than that which sufficed under the old Planning Act, which merely stated that a *620municipality's optional master plan “generally shall comprise land use, circulation, and a report presenting the objectives, assumptions, standards and principles which are embodied in the various interlocking portions of the master plan.” N.J.S.A. 40:55-1.10. A master plan under current law must include a statement of objectives and assumptions as well as a land use plan element and housing element. N.J.S.A. 40:55D-28b. The plan must also state its relationship to other potential plan elements, such as transportation, utilities, community facilities, recreation, environmental and energy conservation, and historic preservation. See N.J.S.A. 40:55D-28b(l)-(10). It also must disclose the technical foundation for the master plan and its constituent elements. N.J.S.A. 40:55D-28b(ll).

The emphasis upon planning as a prerequisite of zoning is also reflected in the statutory responsibility on the part of municipalities to engage in continuing planning. The Municipal Land Use Law calls for periodic review of master plans. The governing body must reexamine the master plan and adopt by resolution a report containing its findings at least once every six years, stating the problems and objectives relating to land development, the extent to which these concerns had been addressed and the extent to which the assumptions or policies that provided the basis of the existing master plan had changed. N.J.S.A. 40:55D-89. . See Levin v. Township of Parsippany Troy Hills, 82 N.J. 174, 181 n. 3 (1980) (“the legislative intent is that a municipality should reexamine its land use regulations periodically.”)

The reason for this elaborate statutory framework is that unlike the practice with respect to the-optional master plans under the old Planning Act, the Municipal Land Use Law demands stricter conformity between the master plan and land use regulation. N.J.S.A. 40:55D-62 requires that “all of the provisions of such zoning ordinance or any amendment or revision thereto shall either be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elementsf.]” *621Unlike the situation discussed in cases like Cochran, supra, 87 N.J.Super. at 535, under current law the master plan cannot be ignored. Indeed, compliance with the planning standard must be demonstrated.

It is thus clear that the focus of the Municipal Land Use Law is on the enhanced role of planning and that it strengthens the planning process itself. The statutory enumeration of the factors to be considered in formulating a master plan, and the statutory directive that the master plan itself include an evaluation of proposed ordinances in light of these factors, N.J.S.A. 40:55D-28b(2), serve the end of heightening the role of planning as a condition of proper zoning. It follows that the requirement that a zoning ordinance be substantially consistent with the master plan should be strictly enforced. It is not amiss to note, further, that the requirement of zoning to conform to a master plan is tempered by some flexibility. Thus, if a municipality adopts an ordinance that is not consistent with its current master plan it must demonstrate a basis for any such departure. Under N.J.S.A. 40:55D-62, a municipality:

may adopt a zoning ordinance or amendment or revision thereto which in whole or part is inconsistent with or not designed to effectuate the land use plan element and the housing plan element, but only by an affirmative vote of a majority of the full authorized membership of the governing body, with the reason of the governing body for so acting 1 recorded in its minutes when adopting such a ordinance[.]

As the Court in Levin observed: “under the new law the power of a municipality to zone remains intact, restricted only by specified procedural requirements and safeguards.” Levin, supra, 82 N.J. at 179. Therefore, a municipality may disregard its master plan provided proper procedural requirements are met. See Sponsor’s Statement to S.3054 (1975) (Municipal Land Use Law retains all the present powers of municipalities). In light of the procedures provided by the Legislature to allow municipalities to validate inconsistent ordinances, when read in *622conjunction with the Law’s overarching concern with encouraging planning, it is clear that the Legislature intended that the requirement that ordinances be substantially consistent with the master plan be rigidly enforced.

The ordinance at issue here is not substantially consistent with the master plan within the meaning of N.J.S.A. 40.-55D-62. The municipal master plan was adopted in 1978. It provides that the area encompassing the Riggs’ property be devoted to “open-space.” However, both ordinance 81-1C and 83-9C call for residential use in the area devoted to open space use by the master plan. “Open-space” is a defined term under the Municipal Land Use Law. Under N.J.S.A. 40:55D-5, open-space is land or water essentially unimproved and reserved for the enjoyment of such open-space. The Law provides that “such areas may be improved with only those buildings, structures, streets and offstreet parking and other improvements that are designed to be incidental to the natural openness of the land.” Id. Thus, the statute itself in this case furnishes a standard for determining whether a zoning ordinance is “substantially consistent with” the master plan. The question is thus whether the residential use permitted by the ordinances in question is “designed to be incidental to the natural openness of the land.”

It clearly is not. Residential use is not consistent with open-space. Residential dwellings that could be constructed as of right under the ordinance in an area designated by the master plan to be devoted to open-space would not be anything like an improvement, such as perhaps a rest station, that might be truly “incidental to the natural openness of the land.” In Sheerr v. Evesham Tp., 184 N.J.Super. 11, 59-60 (Law Div. 1982), an ordinance allowing residential structures as a conditional use in an area designated as “park or preservation area” was found to be neither consistent with the master plan nor designed to effectuate it. Even under the old zoning act, open-space provisions that provided insufficient guarantees that the land would in fact be dedicated to open-space were invalid. See Mountcrest Estates, Inc. v. Mayor of Rockaway Tp., 96 *623N.J.Super. 149, 156 (App.Div.), certif. den. 50 N.J. 295 (1967) (cluster zoning ordinance that did not limit the municipal purpose to which its open-space allotment could be dedicated found invalid). See also Route 15 Associates v. Jefferson Tp., 187 N.J.Super. 481, 487 (App.Div.1982) (ordinance zoning property in commercial area as residential not consistent with master plan). This is not to say that a master plan has the operative effect of a zoning ordinance. It does, however, constitute a substantive standard against which a zoning ordinance is to be measured in terms of “substantial consistency.”

As noted, if an ordinance is inconsistent with the master plan, the ordinance is invalid unless it is approved by a majority of the full authorized membership of the governing body with the reason for the deviation from the master plan recorded in the minutes of the meeting. This did not occur in this case.

In addition to this procedural deficiency, the ordinance is also substantively invalid. Since the Municipal Land Use Law was intended to retain the powers municipalities enjoyed under prior zoning laws, see Report on S.3054 by the Municipal and County Government Committee 1, of necessity the substantive limitations on this power must also be enforced. Therefore, a zoning ordinance that is inconsistent with the land use element of the master plan is not a legitimate exercise of the zoning power unless the ordinance represents more than a haphazard or piecemeal regulation of land use. In other words, the matrix of the municipality’s land use regulations, including the ordinance in question, must reveal a comprehensive plan for the zoning of the community. This resort to the test under the prior zoning statute is appropriate here where the test’s successor, the “substantially consistent” test does not apply, and the municipality is exercising its pre-Municipal Land Use Law power to disregard its own master plan. In addition, it provides a well-defined, judicially developed standard to fill a void left in the current zoning statute. Furthermore, the test appears to be the most appropriate substantive standard, since “[t]he specific requirement of a ‘comprehensive plan’ is intended to *624avoid an arbitrary, unreasonable, or capricious exercise of the zoning power[,]” Speakman v. Mayor of North Plainfield, 8 N.J. 250, 256 (1951) and is thus a guarantee that the zoning power is used for the public good to secure reasonable neighborhood uniformity. Id. at 257. This inquiry is even more appropriate in cases such as this, where the fact that the municipality has deviated from its own detailed plan creates a strong possibility of arbitrary or capricious municipal action or a conflict with existing uses and structures.

Under this standard, the ordinance in question must fall. The effect of the ordinance is to allow residential development in an area intended to be dedicated to open-space use. More accurately, it allows two residential units to be placed on the Riggs’ land. In actuality, however, the Riggs’ land is undeveloped, as are all of the other parcels of land affected by the ordinance. Furthermore, since the municipality has purchased the other parcels with the intent to maintain their undeveloped status, the only property on which it is possible development will take place is the Riggs’. The ordinance thus permits residential development in an area that is dedicated to open-space use both by the master plan and in actuality. The proposed ordinance is thus an arbitrary and capricious exercise of the zoning power. See e.g. Speakman, supra, 8 N.J. at 257 (ordinance allowing foundry in the midst of a residential development found not in accord with a comprehensive plan). See also Mountcrest Estates, supra, 96 N.J.Super. at 156-57 (open-space ordinance which places no limit on the uses to which the municipality can put the open-space land invalid).

The invalidation of the ordinances in question, and the reversion of the Riggs' property to its pre-existing R-50 zoning, does not prevent the Township from following through on its plan to devote the property to open-space. In fact, the Township has already initiated condemnation proceedings for this purpose. Nor do I believe that the approach outlined here requires that any change in the zoning of a parcel of property must mirror its designation in the master plan. Under the facts of this case, *625however, the proposed ordinance is inconsistent with the master plan and the resulting zoning scheme cannot be considered an integrated product of a rational process of land use regulation.

For these reasons, I believe the ordinance at issue here should be invalidated and the property valued under its pre-existing R-50 zoning. I therefore concur in the opinion of the Court adjudging the ordinance invalid.

ln 1985, this section was amended to require that the explanation for deviating from the master plan be "set forth in a resolution[.]” ¿.1985 c. 516.