Opinion
DOCKET NO. A-0821-13T2
09-19-2014
KATARZYNA KRICKOVIC, Plaintiff-Appellant, v. BOROUGH OF EDGEWATER, Defendant-Respondent.
Priscilla J. Triolo argued the cause for appellant (Bittiger Triolo P.C., attorneys; Ms. Triolo, on the briefs). Philip N. Boggia argued the cause for respondent (Boggia & Boggia, LLC, attorneys; Joseph W. Voytus, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-922-13. Priscilla J. Triolo argued the cause for appellant (Bittiger Triolo P.C., attorneys; Ms. Triolo, on the briefs). Philip N. Boggia argued the cause for respondent (Boggia & Boggia, LLC, attorneys; Joseph W. Voytus, on the brief). PER CURIAM
Plaintiff Katarzyna Krickovic appeals from an order entered by the Law Division on August 27, 2013, dismissing her challenge to the Borough of Edgewater's Ordinance No. 1485-2012, which amended the Borough's master plan and zoning regulations. For the reasons that follow, we affirm.
I.
The Borough adopted a master plan in 1979 and thereafter conducted periodic general reexaminations of the plan in accordance with the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. In December 2010, the zoning board of adjustment wrote to the Mayor and Council and stated that the board had become overwhelmed with the number of applications it had received in the previous few years. It recommended a review of the Borough's zoning ordinance, and suggested that consideration be given to updating the ordinance to reflect current conditions in the municipality.
The zoning board's letter was referenced at a January 17, 2012 meeting of the Mayor and Council, which scheduled a work session with Kathryn Gregory, the Borough's Planner, to discuss the matter. Gregory appeared at the Council's meeting on March 5, 2012. She indicated that it was time for the Borough to review its land use element, community facilities element and master plan. Gregory referenced the zoning board's December 2010 letter, the projects for which use variances recently had been granted and the results of the 2010 census.
On March 19, 2012, the Council approved a resolution authorizing Gregory to prepare a master plan and land use element amendment, and to present the same to the planning board and the Council. Gregory prepared a draft report with proposed amendments, which was presented in April and July 2012.
In September 2012, the planning board provided notice to the public, indicating that a hearing would be held on the adoption of amendments to the master plan. The notice was published in The Record on September 14, 2012.
The planner's final report noted that the Borough was nearly "a fully built out community" and "refinement" of its land use pattern and bulk regulations was warranted to ensure that future development would be of a pattern and character that the Borough wished to achieve. The report said that the 2010 census showed a significant demographic change in the Borough. The report recommended the elimination of certain outdated zones and the creation of new mixed-use zoning districts.
The planning board approved the 2012 amendment to the master plan and, consistent with the recommendations in the report, Ordinance 1485-2012 was introduced in the Council. The ordinance had its first reading at the meeting of the Mayor and Council on November 19, 2012. Notice of the introduction of the ordinance was published in The Record and The Jersey Journal. The notices indicated that a public hearing would be held on the ordinance.
The public hearing took place on December 17, 2012, with some members of the public supporting and some members of the public opposing the proposed changes to the zoning regulations. The Council adopted the ordinance by a vote of 4-0, with one abstention and one recusal. Notice of the ordinance's adoption was published in The Record on December 21, 2012.
The ordinance eliminated the B-2A zone and created three mixed-used districts, MXD-1, MXD-2 and MXD-3. It revised the development standards for the R-5 zone, and moved certain properties from the OR-1, MCRD, BR-2, BR-4 and B-2A zones to the R-3, R-5 and newly-created mixed-use zones. The ordinance permitted buildings of up to twenty stories in the R-5 zone, and allows buildings of five stories in the MXD-1 zone, fourteen stories in the MXD-2 zone, and nine stories in the MXD-3 zone.
On February 1, 2013, plaintiff, a resident of North Bergen, filed a complaint in the Law Division, in which she alleged, among other things, that: (1) the Borough failed to give notice of the proposed ordinance to property owners who reside within 200 feet of each lot that was rezoned, as required by the MLUL; (2) the Borough did not consider the traffic impact of the ordinance; (3) the ordinance was not the result of a periodic reexamination of the Borough's master plan; and (4) the ordinance provided for "spot zoning" because certain changes "solely" benefited a single property owner. The Borough filed an answer, denying the allegations.
On April 26, 2013, the trial court entered a case management order which required plaintiff to obtain leave of court for any discovery, other than obtaining public documents pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. In June 2013, plaintiff filed a motion to compel discovery. The court entered an order dated July 12, 2013, denying the motion.
The trial court entertained oral argument in the matter on August 5, 2013. On August 27, 2013, the court entered an order affirming the adoption of the ordinance and dismissing plaintiff's complaint with prejudice. The court also filed a written opinion setting forth its reasons for the order. This appeal followed.
II.
Plaintiff argues that that the trial court erred by failing to invalidate the ordinance because it does not advance the purposes of the MLUL or the objectives of the Borough's master plan and zoning code. We do not agree.
A zoning ordinance is presumed to be valid. Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 350 (2003) (citing Riggs v. Township of Long Beach, 109 N.J. 601, 610-11 (1988)). The party challenging the ordinance must overcome that presumption. Ibid. (citing Ward v. Montgomery Twp., 28 N.J. 529, 539 (1959)).
The ordinance must be upheld if it: (1) advances the purposes of the MLUL; (2) is substantially consistent with the land use and housing elements of the municipality's master plan; (3) complies with applicable constitutional requirements; and (4) was adopted in accordance with statutory requirements. Riggs, supra, 109 N.J. at 611-12.
Here, the trial court determined that the amendments to the zoning ordinance are consistent with several of the purposes of the MLUL and the Borough's master plan. Those purposes are to:
1. [p]rovide sufficient space in appropriate locations for a variety of residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements;
2. [p]romote a desirable visual environment through creative development techniques and good civic design and arrangements;
3. [p]romote the conservation of open space and valuable natural resources and prevent urban sprawl and degradation of the environment through improper use of the land; and
4. [p]romote a vibrant, pedestrian-friendly walk-able environment, complete with retail and restaurant uses at the ground level.
In addition, the court determined that the changes advanced several of the previously-enunciated purposes of the Borough's zoning code, specifically to:
1. [e]ncourage action to guide the appropriate use or development of all lands in [the Borough] in a manner which will promote the public health, safety, morals and general welfare;
2. [p]romote the establishment of appropriate population densities and concentrations that will contribute to the well-being of persons, neighborhoods and the entire municipality;
3. [p]rovide sufficient space in appropriate locations for a variety of residential, recreational, commercial and industrial uses and open space, both public and private, according to their respective environmental requirements;
4. [p]romote a desirable visual environment through creative development techniques and good civic design and arrangements; and
5. [g]enerally achieve[s] and advance[s] the various purposes of the [MLUL] as set forth in the statement of purposes of said law in N.J.S.A. 40:55D-2.
The planner's 2012 report provides ample support for the court's determination. The report noted, among other things, the need to revise the Borough's zoning regulations to reflect prior development, ensure future development was of the sort desired, provide a variety of different uses, establish appropriate population densities, and create the opportunity for pedestrian friendly walk-able areas. The trial court correctly found that the zoning amendments achieve these purposes.
Plaintiff nevertheless argues that the ordinance is not "substantially consistent" with the land use plan and housing elements of the Borough's master plan, as required by N.J.S.A. 40:55D-62(a). We disagree.
As the Court pointed out in Manalapan Realty, L.P. v. Township Committee of Township of Manalapan, 140 N.J. 366, 383 (1995), the Legislature has not defined the phrase "substantially consistent" with a master plan. The Court noted that words used in the statute should be given their "'ordinary and well-understood meanings.'" Id. at 383-84 (citations omitted). Thus, the Court determined that the statute "permits some inconsistency" between the ordinance and the master plan, "provided it does not substantially or materially undermine or distort the basic provisions and objectives" of the plan. Id. at 384.
Plaintiff maintains that the zoning changes at issue are not substantially consistent with the master plan because the changes include the MXD-3 zone, in addition to the MXD-1 and MXD-2 zones which were recommended by the planner in the 2012 report. However, as the trial court noted, the proposed MXD-1 and MXD-2 zones provide standards for development that the planner deemed appropriate. The record shows that the development standards for the MXD-3 zone are a hybrid of those standards. Therefore, the record supports the trial court's determination that the inclusion of the MXD-3 zone in the ordinance is substantially consistent with the provisions and objectives of the master plan, as identified by the planner in her report.
Plaintiff additionally argues that the Borough adopted the zoning changes without regard to their effect upon traffic. Plaintiff notes that in October 2012, the Borough's planner suggested that such a study be performed. The MLUL does not, however, require that a municipality conduct a traffic study before making any change to its zoning ordinance.
Furthermore, the main thoroughfare in the section of the Borough principally affected by the ordinance is River Road, which is a county road. The record shows that in 2009, Bergen County conducted a traffic study of that road and the nearby waterfront area. The Borough did not act arbitrarily, capriciously or unreasonably in adopting the ordinance without another traffic study.
Plaintiff also contends that the zoning changes do not advance the goals and purposes of the Borough's zoning code. She contends that the amendments create clusters of extremely high densities; restrict open space, light, air and views; and ignore transportation routes and educational facilities. She asserts that there is no valid purpose for the rezoning of certain properties to the R-5 zone because these properties are either fully developed or "substandard" to that zone. Again, we disagree. The record supports the trial court's determination that the zoning charges are consistent with goals and purposes in the Borough's zoning code.
III.
Next, plaintiff argues that the Borough failed to give notice of the proposed zoning changes to property owners in accordance with N.J.S.A. 40:55D-62.1. The statute provides that notice of proposed changes to classifications or boundaries of zoning districts must be provided to property owners within the districts and to property owners within 200 feet of the proposed new boundaries of the districts. Ibid.
However, N.J.S.A. 40:55D-62.1 also states that such notice need not be provided when the "classification or boundary changes" in a zoning amendment are "recommended in a periodic general reexamination of the master plan by the planning board." Ibid. Here, the trial court determined that the zoning changes at issue were the result of a general reexamination of the Borough's master plan. Plaintiff contends the record does not support the court's determination.
Plaintiff notes that the zoning changes were adopted as a result of a planner's report, which is entitled, "2012 Land Use Element Amendment to the Master Plan." She contends that, because the report does not use the term "reexamination," the resulting changes cannot be considered a reexamination of the Borough's master plan. We are convinced, however, that the trial court correctly determined that plaintiff was attempting to exalt form over substance.
As the court found, the 2012 report is, in substance, a periodic general reexamination of the Borough's master plan. Indeed, as noted previously, the zoning changes were the result of a process initiated by the zoning board, which asked the Mayor and Council to review and update the zoning code in light of current conditions in the municipality.
The Borough's planner also told the Mayor and Council that a further review of the ordinance was warranted. Thus, the zoning changes were not adopted in a vacuum, as plaintiff suggests. They were the result of a review that can only be characterized as a general periodic reexamination of the master plan.
IV.
Plaintiff further argues that the changes for the R-5 zone constitute "spot zoning." She contends that one particular developer is the only property owner to benefit from the revised classifications and height regulations for that zone. She claims these zoning changes were "clearly designed to benefit one property owner at the expense of the community." The record does not support plaintiff's argument.
"Spot zoning" is "'the use of the zoning power to benefit particular private interests rather than the collective interests of the community.'" Jennings v. Borough of Highlands, 418 N.J. Super. 405, 425 (App. Div. 2011) (quoting Taxpayers Ass'n of Weymouth Twp., Inc. v. Weymouth Twp., 80 N.J. 6, 18 (1976), cert. denied, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977)). Furthermore, as the Supreme Court explained in Borough of Cresskill v. Borough of Dumont, 15 N.J. 238, 249 (1954):
The test is whether the zoning change in question is made with the purpose or effect of establishing or furthering a comprehensive zoning scheme calculated to achieve the statutory objectives or whether it is "designed merely to relieve the lot of the burden of the restriction of the general regulation by reason of conditions alleged
to cause such regulation to bear with particular harshness upon it." (internal citation omitted).
Here, the record shows that the zoning changes were adopted to promote development in a section of the town that previously had little development and an inconsistent development pattern. The zoning changes involve about fifty parcels of land. Apparently, one developer owns a substantial portion of the rezoned parcels.
Even so, a zoning change does not constitute "spot zoning" merely because the change may benefit a particular developer, so long as the change is part of a comprehensive plan designed to benefit the community. Powerhouse Arts Dist. Neighborhood Ass'n v. City Council, 413 N.J. Super. 322, 334-35 (App. Div. 2010), certif. denied, 205 N.J. 79 (2011). The record supports the trial court's determination that the zoning changes at issue were enacted as part of a comprehensive plan to advance the general welfare of the community. Therefore, the trial court did not err by rejecting plaintiff's claim of "spot zoning."
V.
Plaintiff additionally argues that the trial court erred by refusing to permit her to undertake pre-trial discovery and by failing to conduct an evidentiary hearing on her complaint. These contentions are without merit.
As noted previously, the trial court entered a case management order dated April 26, 2013, which allowed plaintiff to obtain documents from the Borough pursuant to OPRA, but provided that no additional discovery would be permitted without leave of court. Plaintiff thereafter filed a motion to compel discovery. The trial court entered an order dated July 12, 2013, denying the motion, for the reasons stated on the record. Plaintiff has not, however, provided this court with a copy of the transcript of those proceedings.
Furthermore, at the hearing on the matter on August 5, 2013, plaintiff's counsel argued that plaintiff should have been afforded "proper" discovery. The court stated that it had previously ruled on that issue. Plaintiff's counsel also said that plaintiff should be afforded an evidentiary hearing. The court decided such a hearing was not required.
Plaintiff has not shown that the court abused its discretion by denying her application for discovery. As noted, the court permitted plaintiff to obtain relevant public records pursuant to OPRA. The record does not indicate what additional discovery plaintiff was seeking or how it had any bearing upon the issues to be decided by the court. The record also does not include a transcript of the court's ruling on plaintiff's discovery motion, thereby precluding any review of the reasons for the court's decision on that motion.
Moreover, the trial court did not err by denying plaintiff's request for an evidentiary hearing. Plaintiff argues that she should have been allowed to present the report and testimony of a professional planner to show that the zoning changes were not substantially consistent with the master plan and did not advance the purposes of the MLUL.
However, plaintiff did not provide the trial court with a planner's report or make a proffer of a planner's testimony. Under the circumstances, the court was not obligated to conduct an evidentiary hearing on plaintiff's complaint.
In support of her argument, plaintiff relies upon Sartoga v. Borough of Paterson, 346 N.J. Super. 569, 579 (App. Div.), certif. denied, 172 N.J. 357 (2002). There, we stated that a plenary hearing should be held when a party challenging the validity of a zoning ordinance presents evidence that would support a finding that the ordinance violates principles of sound zoning embodied in the MLUL. Id. at 579-80. In Sartoga, the parties challenging the ordinance presented expert reports in support of their claims. Id. at 573-75. Here, plaintiff presented no such reports or evidence for the court's consideration. Therefore, an evidentiary hearing was not required.
We have considered plaintiff's other contentions and find that they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION