(908)402-4770The owner of a 206-acre parcel of land in Branchburg Township who challenged a zoning ordinance which greatly reduced the potential number of houses that could be built on the property received a mixed decision on the municipality’s appeal. In Merck Sharp & Dohme Corp. v. Township of Branchburg (App. Div. Dec. 13, 2018), the Appellate Division affirmed the trial court’s ruling that under the facts of the case the plaintiff did not have to seek a variance from the six acre minimum lot size requirement before challenging it in lieu of prerogative writs. The appellate court, however, vacated that part of the decision which imposed upon the municipality the obligation to justify the down-zoning and remanded for reconsideration under the typical standard favorable to municipalities.
The plaintiff owns a 206-acre tract of prime agricultural land. Prior zoning permitted residential development of the land at a density of one house per acre. In 2008, in furtherance of its goal to preserve the rural character of the municipality, the Township increased the minimum lot size to six acres. Plaintiff promptly challenged the ordinance in the Superior Court by means of an action in lieu of prerogative writs.
Among the municipality’s defenses was the argument that plaintiff could not challenge the ordinance until it had exhausted its administrative remedies by seeking a variance. Among other powers, a municipal board of adjustment may grant a variance to permit a density in excess of that permitted by the ordinance. Although the board of adjustment may grant density variances, it may not do so when the variance would essentially amount to a rezoning of the property.
The requirement for exhaustion of administrative remedies is a long-standing but not absolute prerequisite to the commencement of an action in lieu of prerogative writs. However, an administrative remedy is not considered “available” if, among other things, it would be futile. In this case the courts determined that the grant of variance relief to the plaintiff would essentially be the rezoning of the property by the municipal board of adjustment. This determination is based upon both the size of the plaintiff’s property and that the grant of such a variance would have substantially altered the zone plan, which had been put in place less than two months before the challenge was filed. The grant of such a variance would have been a de facto rezoning.
Because the board of adjustment would not have had jurisdiction to grant a variance of such nature as to afford the plaintiff relief, plaintiff had no administrative remedy to exhaust.
The plaintiff did not fare so well, however, in the appellate court’s review of the trial court’s substantive decision invalidating the ordinance. Although the municipality’s planning goal was to preserve farmland, the property is located within a growth area under the State Development and Redevelopment Plan (the State Plan). In what the appellate court described as a “novel” holding, the trial court ruled that where a significant down-zoning occurred in an area designated for growth under the State Plan, the municipality had the burden to justify the down-zoning as fairly reconciling regional and local goals. While not discussing any specific regional plans, the appellate court rejected the notion that the State Plan could be used as a basis to attack a municipal ordinance. The accepted standard for the review of the ordinance places the burden upon the plaintiff to demonstrate that the ordinance is clearly arbitrary, capricious or unreasonable or plainly contrary to the principles of zoning or the planning statute. The case was remanded for the trial court to re-evaluate the ordinance under that standard.
Schiller, Pittenger & Galvin, P.C., has attorneys who are experienced in land use litigation.