January 1, 1900
Supreme Court Breathes New Life Into Rezoning Litigation
by Thomas F. Carroll, III
Challenging rezoning ordinances has never been easy. Municipal actions are presumed valid, and they are entitled to a presumption of validity in court. Moreover, our courts have traditionally accepted a municipality's statement of goals and purposes at face value.These factors have presented formidable challenges to those who seek to have downzoning ordinances overturned. However, a recent case issued by the New Jersey Supreme Court provides renewed hope to those who litigate against downzonings.
The Pheasant Bridge Case
In Pheasant Bridge Corporation v. Tp. of Warren, decided in August of 2001, the defendant Township adopted a rezoning ordinance limiting development to large lot residential (6 acre lots). The Supreme Court ruled that the rezoning ordinance was arbitrary, capricious and unreasonable as applied to the property at issue in the case, and struck it down.
The Standard Of Review
The standard of review is critically important to the resolution of such matters. In Pheasant Bridge, our Supreme Court first noted that: "[A] court engages in a review of the relationship between the means and ends of the ordinance." The Court then stated that: "In the context of a zoning challenge, the means selected must have real and substantial relation to the object sought to be attained, and the regulation or proscription must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not partake of the offensive character of those which cause the problem sought to be ameliorated." Further, the Court held that the zoning regulation "must be reasonably designed to resolve the problem without imposing unnecessary and excessive restrictions on the use of private property."
Simply put, this means that courts should not simply accept a municipal claim that a drastic downzoning is required in order to meet some perceived threat to the public welfare. The ordinance must not impose limitations any more restrictive than is necessary to address the public need.
"As Applied" Challenges
The Court also made clear that a property owner affected by a downzoning need not show that the ordinance is unreasonable as applied throughout the municipality. As the Court said: "[A] landowner may challenge the application of an otherwise valid ordinance to a specific tract of property...[A]n ordinance that may operate reasonably in some circumstances and unreasonably in others is not void in toto, but is enforceable except where in the particular circumstances its operation would be unreasonable and oppressive." Again, this eases the burden on one who challenges a rezoning. The litigant can focus only on the property in question and prevail in invalidating the ordinance as applied to that property if the appropriate facts can be shown. For example, in Pheasant Bridge the Supreme Court upheld the trial court's finding that "few of the environmental concerns which justified the passage of the ordinance apply to this apparently unique piece of property."
The defendant Township had asserted that environmental constraints, such as wetlands, steep slopes, floodplains and water table, justified the rezoning. The trial court found that the constrained lands that were present, such as wetlands, were adequately protected by existing legislation, and that there was no explanation as to why large lot zoning was necessary in order to protect such features.
The Pretextual "Farmland Preservation" Argument
The Warren Township ordinance in Pheasant Bridge also stated that one of its purposes was "the preservation of farmland." The master plan asserted that the downzoning was "meant to guarantee the protection of environmentally sensitive features which are predominant in the area, to insure the continuation of this area as open space and recreation, promote agricultural retention where appropriate, and maintain the predominantly rural character." Significantly, the trial court found that: "Such language suggests the goal of the ordinance is maintenance of the status quo. Since the property is now vacant, one apparent goal of the EP-250 requirements was the maintenance of the property in its vacant state.... [But] authority is generally seen as lacking for the establishment of lot sizes which are not supported by the requirement necessary to accommodate septic and water systems."
Warren also argued that the ordinance was "justified by a desire to preserve farm land and six acres is the appropriate size under the Farmland Assessment Act." The court found that: "On its face that argument seems contrived because of its late arrival and its omission from the very substantial Master Plan adopted by the Planning Board. Furthermore, the soils map for the EP-250 zone shows the soil is ill suited for farming. Since it was not advanced at trial nor mentioned at the time the ordinance was enacted, it will not be further considered." These findings of the trial court were approved by the Supreme Court.
Thus, the Pheasant Bridge case continues the judicial trend toward looking beyond the stated purpose of municipal actions to see if they are, in fact, pretextual and therefore entitled to no weight. This trend has been quite apparent in condemnation cases, where the courts have looked beyond municipal expressions of legitimate public purpose to find that the true purpose, such as simply preventing development, is illegitimate. The Pheasant Bridge casenow applies the same analysis to rezoning cases, and litigants may now more forcefully argue that asserted zoning purposes are pretextual and should be disregarded.
The remedy awarded by a court when a rezoning is invalidated is no less important than the victory itself. For example, a court could remand the matter to the municipality for the adoption of new zoning, or it could find that the prior zoning should simply be restored and left undisturbed. In this regard, the Supreme Court held that "it is time to bring this litigation to an end," and directed that the property may be subdivided in accordance with the zoning that preexisted the downzoning challenged in the case. In other words, the remedy was that the prior zoning must be restored.
The Takings Issue
All was not completely rosy in Pheasant Bridge. While the property owner had the rezoning invalidated and the prior zoning restored, the separate takings claim was not successful. Through that claim, the plaintiff asked the courts to find that the property had been "taken" for the amount of time necessary to reverse the unlawful municipal action, and just compensation making the property owner whole was sought. The Supreme Court rejected that claim. The plaintiff has sought to appeal this ruling to the United States Supreme Court.
A New Tool For The Downzoned
It has been years since the New Jersey Supreme Court released an opinion that provided real hope to those who oppose downzonings. The Pheasant Bridge case rearranges the legal landscape when it comes to analyzing rezonings, and it is expected that the lower courts will heed its words and apply much more serious scrutiny to municipal downzonings.
Thomas F. Carroll, III, also a partner of Hill Wallack, is a member of the firm's Land Use Division. He also serves on the NJBA's Land Use and Planning Committee and its Site Improvement and Infrastructural Standards Committee. A Member of the Board of Directors of the New Jersey State Bar Association's Land Use Section, he concentrates his practice in the development application process and the litigation required in the course of land development.