NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Precast Manufacturing Company, L.L.C. (Precast) and GPF Leasing (GPF) (intervenors) appeal from an order upholding defendant Township of Lopatcong's adoption of two zoning ordinances. Ordinances 11-07 and 2011-15 allowed asphalt manufacturing as a conditional use in the southern portion of the research, office, and manufacturing zone (ROM zone south); and designated solar photovoltaic facilities as a permitted use in the Township's research, office, and manufacturing zone (ROM zone), and as an accessory use in the ROM zone and the highway business zone (HB zone).
For purposes of this opinion, we have consolidated intervenors' appeal and ten other plaintiffs' (the other plaintiffs) appeal from an order upholding defendant Township of Lopatcong Planning Board's approval of an application by defendant 189 Strykers Road Associates, L.L.C. (189 Strykers) seeking to construct and operate an asphalt manufacturing plant in Lopatcong.
We affirm both appeals.
Lopatcong underwent sustained residential development for decades. As a result, it focused on developing its commercial and industrial areas. Its Planning Board renamed the industrial zone as a "ROM" zone, which it divided into three non-contiguous sections. The ROM zone south comprised the largest of these sections, and was most suitable for industrial development due to its proximity to Route 22 and I-78. Lopatcong then engaged in various improvement projects in the ROM zone south, including the area through which Strykers Road traveled.
Before 189 Strykers expressed an interest in developing an asphalt plant on 189 Strykers Road, Lopatcong considered an amendment to its zoning ordinances. It did so in response to legislation mandating renewable energy facilities (such as solar and photovoltaic facilities) as permitted uses in industrial zones. As a result, Lopatcong reviewed proposed ordinance 11-07 to allow renewable energy facilities. The Council then passed ordinance 11-07.
Enzo and Yola Marinelli, and John and Gena James, Lopatcong residents (the individual plaintiffs), filed a complaint in lieu of prerogative writs against Lopatcong, its Mayor and Council, and Planning Board (defendants). They challenged ordinance 11-07 on several grounds. They argued primarily that defendants had violated the Municipal Land Use Law (MLUL),
Lopatcong responded by considering proposed ordinance 2011-15. The Planning Board reviewed the proposed ordinance and issued minutes memorializing its comments. The Council considered the comments and sought additional input from the Planning Board. Thereafter, the Council adopted ordinance 2011-15. The individual plaintiffs then filed a complaint in lieu of prerogative writs challenging the adoption of ordinance 2011-15, in which the intervenors joined.
Meanwhile, 189 Strykers had filed an application with the Planning Board for preliminary and final site plan and subdivision approval for its operation of an asphalt plant under ordinance 11-07. 189 Strykers also filed a substantially similar application after the Council adopted ordinance 2011-15. The Planning Board conducted seven public hearings, heard testimony from thirteen witnesses, including ten experts, and unanimously approved the application.
The individual plaintiffs then filed a complaint challenging the Planning Board's approval of 189 Stryker's site plan applications. The intervenors also intervened in that action, and the other plaintiffs filed a separate complaint challenging the Planning Board's site plan approvals. The court consolidated these two complaints pertaining to the site plan challenges, and then consolidated them with the other two complaints the individual plaintiffs had filed challenging the enactment of both ordinances.
A judge conducted a bench trial as to the validity of the ordinances. He then dismissed the allegations against the Mayor, and found that prior to the adoption of the ordinances, asphalt manufacturing was a permitted use in the ROM zone; the ordinances did not significantly change the ROM zone; the Township complied with the MLUL provisions; and the ordinance did not violate any MLUL requirements. In his 118-page written opinion, the judge rejected the contentions raised by the individual plaintiffs and upheld the ordinances. Thereafter, the individual plaintiffs dismissed with prejudice their claims as to the ordinances.
A different judge then conducted a bench trial addressing allegations that the Planning Board arbitrarily approved the site plan applications. That judge also rendered a thorough opinion. After rejecting all contentions that the approvals were unreasonable, the judge dismissed the complaints as to the site plan approvals with prejudice.
On appeal from the order upholding Lopatcong's adoption of the zoning ordinances, intervenors argue the court erred by finding that (1) the operation of an asphalt plant was a pre-existing permitted use, and Lopatcong issued adequate notice to nearby property owners even though it was not obligated to do so; (2) Lopatcong complied with the MLUL public notice requirements; (3) the Planning Board correctly submitted a consistency report to the Council; (4) ordinance 2011-15 complied with the MLUL uniformity requirement; (5) ordinance 2011-15 furthered the goals and purposes of the MLUL; (6) ordinance 2011-15 did not constitute spot zoning; and (7) the Mayor did not have a conflict of interest with regard to the ordinances.
On the appeal from the order upholding the Planning Board's approval of an application by 189 Strykers, intervenors contend that the Planning Board failed to provide notice of the hearings on the applications in accordance with the MLUL and the Open Public Meetings Act (OPMA),
We begin by addressing intervenors' appeal as to the enactment of the ordinances.
When reviewing a trial court's decision regarding the validity of a local board's determination, "we are bound by the same standards as was the trial court."
There is substantial evidence in the record to support the judge's finding that the operation of an asphalt plant was a pre-existing permitted use in the ROM zone.
Chapter 243 of the Township zoning code regulated the ROM zone prior to the adoption of ordinances 11-07 and 2011-15. Section 243-75 of the code permitted in pertinent part "[f]abrication of products made of metal, wood, paper, cement or concrete"; business and professional offices; and "[s]cientific, engineering and/or research laboratories." Section 243-64.2 allowed accessory uses, such as outdoor bulk storage, which Section 243-64.2(a) defined as "the stockpiling or warehousing of vehicles, merchandise, materials and machinery outside the enclosed confines of a building, including but not limited to sand, gravel, dirt, asphalt, lumber, pipes, plumbing supplies, metal, concrete, insulation, construction equipment, construction vehicles, construction materials, storage trailers and containers."
At trial, Lopatcong's Planner George Ritter testified that he and the Planning Board had always considered asphalt manufacturing a permitted use under Section 243-75. He explained that ordinances 11-07 and 2011-15 did not change this, but rather, allowed for additional regulations by changing asphalt manufacturing to a conditional use. While acknowledging that asphalt manufacturing was not included in the Section 243-75 list of permitted uses, Ritter said that the list was not intended to be exhaustive or exclusive. The judge found that Ritter's trial testimony was credible.
Ritter also testified that asphalt manufacturing was essentially the same as concrete manufacturing, the difference being the type of binding agent used. In the case of concrete, the binding agent was Portland cement, and in the case of asphalt, the binding agent was a petroleum product called bituminous. Ritter stressed that no one had disputed concrete manufacturing was a permitted use under Section 243-75. Indeed, Precast had been manufacturing concrete for years on property located across the street from 189 Strykers Road, and Lopatcong never required it to obtain a variance to do so.
According to the court, Lopatcong "rightly classified" asphalt manufacturing and photovoltaic facilities as "industrial uses," which were permissible in the ROM zone under the original zoning ordinance. For the twelve years that Ritter served as Lopatcong's Planner, he "always considered" asphalt and concrete manufacturing to be permitted uses within the ROM zone. The court found that the only differences between concrete and asphalt were the binding agents and the temperature at which the two materials were created, and according to Ritter, these distinctions were immaterial for purposes of zoning. Although the court recognized that the ordinances said asphalt and concrete manufacturing had not been a permitted use in the Township, the judge accepted Ritter's testimony that his office erroneously included this language.
We reject intervenors' argument raised for the first time that the ordinances substantially changed the character of the ROM zone by permitting solar photovoltaic facilities and by allowing non-stop production of asphalt. The evidence established that asphalt manufacturing and solar photovoltaic facilities were industrial uses, which Lopatcong allowed in the ROM zone. Furthermore, the State had declared solar energy facilities inherently beneficial uses suitable for inclusion in industrial zones.
Thus, whether such facilities previously existed in the ROM zone was insignificant; the Legislature had determined their suitability for industrial zones. Additionally, no evidence supported intervenors' contention that asphalt manufacturing changed the zone through its constant operations. As the court found, under the former version of the ordinance, nearby businesses operated throughout the night. Asphalt manufacturing was no different.
We conclude that intervenors' argument as to providing notice to nearby property owners is without sufficient merit to warrant discussion in a written opinion.
Intervenors contend that the public notices of proposed ordinances 11-07 and 2011-15 were defective because they failed to summarize the nature of the changes proposed by the ordinances, as required by
Upon passage of an ordinance,
Lopatcong published notice of ordinance 11-07 in The Star-Gazette. The notice stated that Lopatcong adopted an ordinance amending Chapter 243 adding (1) asphalt and concrete manufacturing facilities as conditional uses in the ROM zone south of the Norfolk southern railroad; (2) solar photovoltaic facilities as a permitted principal use in the ROM zone; and (3) solar photovoltaic facilities as an accessory use in the ROM zone and in the HB zone south of the Norfolk southern railroad. The notice stated that the ordinance was available for inspection at the municipal clerk's office. Lopatcong published notice in The Express Times that it had adopted ordinance 2011-15. The notice provided the same information as the notice for ordinance 11-07.
These notices complied with
Intervenors contend that Lopatcong did not comply with the MLUL consistency report requirement and failed to follow the proper procedure for adopting an ordinance that was inconsistent with the master plan.
The court found that Ritter's consistency report complied with the MLUL and detailed the ways in which ordinance 2011-15 was substantially consistent with the goals, policy, and uses set forth in the master plan. As Ritter explained, the master plan encouraged "greater flexibility in the type and size of industrial activities" within the ROM zone to encourage business development and offset the costs associated with residential development. Consistent with the master plan's goal to encourage attractive commercial development, the ordinance provided for setbacks and landscaping to "mitigate visual and noise impacts." Additionally, Ritter explained that the uses permitted by ordinance 2011-15 were consistent with existing uses in the ROM zone and would not change the character of the zone. The court underscored that professional planner Elizabeth McKenzie concurred with Ritter's conclusions.
The court also noted the Planning Board's contention that asphalt manufacturing was previously a permitted use in the ROM zone and that the Planning Board had always understood that use to be consistent with the master plan. Lopatcong enacted the ordinances to better control the use by changing its designation from a permitted to a conditional use. That the master plan did not specifically list asphalt manufacturing as an authorized use in the ROM zone was insignificant because the master plan did not constitute an exhaustive list of specific uses. Similarly, as the court explained, the master plan's silence on solar photovoltaic facilities did not establish that they were inconsistent with the ROM zone. The Legislature had declared them inherently beneficial uses appropriate for industrial zones.
Because the ordinance was consistent with the master plan, the court found that the Council did not have to comply with the procedure set forth in
A planning board's finding that a proposed ordinance is consistent with a master plan "is entitled to deference and great weight."
Intervenors argue that the evidence did not clearly establish that Ritter submitted a consistency report to the Planning Board prior to its referral of ordinance 2011-15 to the Council. Further, they claim that although Ritter's report identified solar photovoltaic facilities as inconsistent uses, the Planning Board failed to recognize this.
The Planning Board minutes show it considered a consistency report drafted by Ritter, and then voted to refer the matter to the Council. The Board forwarded to the Council a consistency report that Ritter apparently updated in light of the hearing. In that report, Ritter detailed the ways in which the proposed ordinance was consistent with the master plan.
After the Council removed a Strykers Road requirement from the proposed ordinance, it referred the matter to the Planning Board, and at the Planning Board's request, Ritter updated his consistency report to reflect the change. Thus, even if the Board did not initially have a written report at one of the hearings, it had one at a later hearing at which it approved the ordinance.
Intervenors argue that because proposed ordinance 2011-15 was inconsistent with the master plan, Lopatcong had to comply with the procedure set forth in
As the court found, the ordinance was consistent with the master plan, thus Lopatcong did not have to follow the procedure set forth in
Intervenors contend that ordinance 2011-15 violated the MLUL uniformity standard because it authorized asphalt manufacturing in only one part of the ROM zone without a reasonable explanation for not allowing it in other parts of the ROM zone.
The court found that the ROM zone regulations, including ordinance 2011-15, did not offend the MLUL uniformity provision because the variations within the zone were rationally related to the characteristics of the land. In comparison to the northern and western ROM zones, the southern ROM zone was larger in size and was located near major highways. It also had newly constructed access to the highways through Strykers Road, which the Township had improved in order to attract industrial development in the area. Access to sewers was also limited. Thus, the court concluded that restricting asphalt and concrete manufacturing to the ROM zone south was justified by the characteristics of the area.
The court also noted that the MLUL's definition of conditional use recognized that "locational standards" for a particular property may vary within a zone. That definition defined conditional use as
The MLUL uniformity provision provides:
The uniformity provision is rooted in notions of due process and equal protection of law.
The statute does not require complete uniformity within a zone.
To promote industrial development and generate tax revenue, Lopatcong authorized asphalt manufacturing in the southern portion of the ROM zone because that part of the zone was best suited for the use based on its characteristics. The court's findings were supported by the evidence and were not arbitrary or capricious.
Intervenors contend that the ordinances were invalid because they did not advance any of the MLUL purposes set forth in
The judge found that ordinance 2011-15 furthered the purposes of the MLUL because it improved Lopatcong's land use scheme and encouraged appropriate and responsible commercial and industrial growth near roadways suitable for such development. This, in turn, promoted fiscal balance, a stable tax base and employment opportunities, which were all consistent with the MLUL goals. No credible evidence supported intervenors' claim that Lopatcong intended to mislead or confuse the public.
To be valid, a zoning ordinance must advance at least one of the MLUL purposes set forth in
Here, ordinance 2011-15 promoted commercial and industrial growth near major roadways, encouraged fiscal balance, a stable tax base and job creation, and allowed for renewable energy resource centers, all of which were consistent with the purposes set forth in
The court correctly rejected intervenors' contention that the ordinance amounted to spot zoning. The term "spot zoning" refers to a zoning ordinance that "benefit[s] particular private interests rather than the collective interests of the community."
The ordinance did not benefit one property owner, but rather, Lopatcong as a whole. Since at least 1989, Lopatcong had been encouraging development in the ROM zone, and the ordinance furthered that purpose. As the court found, at least six other parcels within the ROM zone south met the requirements for the conditional use of an asphalt or concrete facility. Thus, the ordinances did not single out one piece of property. Further, because asphalt and concrete manufacturing had been permitted uses in the ROM zone prior to the ordinances' adoption, Lopatcong did not create the use to benefit one land owner.
Intervenors contend that ordinance 2011-15 is invalid as tainted by the Mayor's alleged conflict of interest. They claim that the Mayor was a partner in a law firm with the brother of an owner of 189 Strykers, and that this at least created an appearance of impropriety that rendered the ordinance invalid.
A public official may not participate "in judicial or quasi-judicial proceedings in which the official has a conflicting interest that may interfere with the impartial performance of his [or her] duties as a member of the public body."
The court rejected intervenors' conflict of interest challenge as unsupported by credible evidence. The judge stated emphatically that "[t]here is simply no evidence to support the [intervenors'] claims [of a conflict] other than surmise, shadow and speculation." Furthermore, the Mayor recused himself from voting on ordinance 2011-15.
We conclude that intervenors' remaining arguments are without sufficient merit to warrant discussion in a written opinion.
We now turn to the appeal pertaining to the Planning Board's approval of the site plans.
We see no error as to the notice provided under the MLUL. Pursuant to
To comply with
Proper notice is a jurisdictional requirement to a planning board's exercise of authority.
Intervenors contend that because 189 Strykers intended to use Lot 6.05 for storm water discharge, and because Lots 6.02 and 6.05 used a private driveway for access to Strykers Road, the notice of the hearings had to include those properties as part of the development. The final resolution granting site plan approvals, however, confirmed that the private road was, in fact, not a separate lot. The resolution granted "approval to subdivide the tract into two (2) parcels" with a "34 foot wide access road" that would service the parcels. It did not define the road as a separate parcel or lot.
Moreover, the court found that the storm water management plan made no significant change to the flow of water on the property. No credible evidence established that storm water runoff was a significant concern for the property. The property was not located in a flood zone and had no protected wetlands, buffers, or wildlife. Thus, the likelihood that nearby property owners would be concerned with the construction, so as to require MLUL notice, was virtually nonexistent.
Finally, we see no merit in intervenors' contention that the notice should have included the resource recycling facility as a separate conditional use in the ROM zone. As the court found, the resource recycling facility was not separate from the asphalt manufacturing plant, but rather was part of the asphalt manufacturing process. The notice advised that the applicant sought site plan approval "to permit the construction and operation of an asphalt manufacturing facility." Thus, the notice adequately advised nearby property owners of the nature of the proceeding.
We reject intervenors' contention that Lopatcong violated the OPMA, and that the court erred in ordering no action to remedy the alleged violations. They claim that the Planning Board failed to publish notice of its meetings in two New Jersey newspapers; used an out-of-state newspaper to effectuate notice; and did not include an agenda in the notices of hearings dated February 23, February 29, March 1 and March 5, 2012. They also argue that the court erred in finding that the MLUL notice helped cure the purported OPMA errors, and in finding that the OPMA notice errors did not warrant remedial action.
The OPMA is premised on the right of New Jersey citizens to "have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon."
The OPMA provides that "no public body shall hold a meeting unless adequate notice thereof has been provided to the public."
The OPMA defines "adequate notice" as
Thus, while the OPMA requires strict compliance, whether a governing body substantially complied with the requirements "carries some weight on the question of remedy and relief."
In fixing a remedy, courts are afforded "maximum flexibility" based on "the nature, quality and effect of the noncompliance."
Here, the court found that Lopatcong failed to provide forty-eight-hours advance notice in two newspapers for the February 29, March 1, and March 5, 2012, meetings. Notice of these meetings appeared only in The Express Times. The court noted that Margaret Beth Dilts, the township clerk, custodian of records, and secretary on land use for the Planning Board, notified The Star Gazette of the hearings on the following dates: February 23 for the February 29 hearing; February 27 for the March 1 hearing; and March 2 for the March 5 hearing. However, the notifications were untimely for purposes of The Star Gazette's weekly publication deadlines.
The court found, however, that Lopatcong did not intentionally attempt to conceal the hearings from the public and underscored that the MLUL notice provided details on the nature of the hearings. Based on the
Further, notice of the meetings appeared in The Express Times, which the court found was widely distributed in the area, and numerous press articles show that the application and Board proceedings were not kept secret. As we stated in
As to the out-of-state newspaper, the court found that publishing in The Express Times "ma[de] some sense" because it was the newspaper most likely to inform the public at large of the Township's actions. Thus, publication in that paper furthered the purpose of the OPMA. Even if the Township erred in publishing notice in an out-of-state paper, which it did not, the error would not be a basis to invalidate the Board's action because, as the court found, the Board did not act in bad faith and its actions furthered the purpose of the OPMA.
We likewise conclude there is no merit to intervenors' contention that remedial action was necessary as a result of Lopatcong's failure to include an agenda in the notices for the February 23, February 29, March 1, and March 5, 2012, hearings. Any such errors were insufficient to void the Planning Board's action. The judge stated, "[e]veryone knew what this hearing was going to be about." No evidence established a bad faith attempt to conceal the nature of the hearing, and the MLUL notice contained "so much" more detail than simply listing the application in the agenda.
Intervenors argue that the court erred in finding that the Board's MLUL notice fell within the "last proviso clause" of
Intervenors contend the Planning Board delegated approval power to its engineer by providing in the May 23, 2012 resolution that if the applicant was unable to obtain an easement to install the drainage pipe, it could draft an alternative storm water management plan, so long as the Planning Board's engineer approved the plan. They claim that the storm water management plan was an essential element of the development; thus, the change to it should have been presented to the Planning Board for a decision after a public hearing. Additionally, they maintain that the engineer decided that the driveway on 189 Strykers's property should be a private road.
The court found that the Planning Board, not the engineer, made the decision to have the driveway remain a private access road to avoid the cost of maintenance to Lopatcong.
The Board agreed with its engineer that to save costs, 189 Strykers should maintain the road as private. The final decision was made by the Board. With respect to the storm water management plan, 189 Strykers submitted it to the Board for review by the Board and its professionals. At the hearings, 189 Strykers's engineer Kevin Smith testified to the nature of the plan, explaining that he was confident he could draft an alternative plan if 189 Strykers was unable to secure an easement to install the drainage pipe.
We conclude that intervenors' remaining arguments are without sufficient merit to warrant discussion in a written opinion.