SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2425-95T5
ROBERT J. DAMURJIAN,
Plaintiff-Respondent,
v.
BOARD OF ADJUSTMENT OF THE
TOWNSHIP OF COLTS NECK,
Defendant,
and
THE TOWNSHIP OF COLTS NECK,
Defendant-Appellant.
________________________________
Argued: February 20, 1997 - Decided: March
24, 1997
Before Judges King, Conley and Loftus.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County.
Richard J. Shaklee argued the cause for
appellant Twp. of Colts Neck (McLaughlin,
Bennett, Gelson & Cramer, attorneys; Mr.
Shaklee, on the brief).
Peter S. Wersinger, III, argued the cause for
respondent Robert Damurjian (Heffernan &
Wersinger, attorneys; Mr. Wersinger, on the
brief).
The opinion of the court was delivered by
KING, P.J.A.D.
In October 1990 the Township of Colts Neck (defendant) added Article 7, Section 711, Note 4 to its zoning ordinance. Note 4 provides:
In the A-1, A-2, A-3 and AG zone[s], if
the length of the principal building, projected on the front lot line, exceeds 90 feet,
the required front, each side, and rear yard
requirements shall be increased one foot for
each foot the building projection exceeds 90
feet.
Robert A. Damurjian (plaintiff) owned a parcel of land in the
A-1 zone on which he sought to build a single-family residential
dwelling with an attached garage. The defendant contended that the
"length" of his proposed dwelling, "as projected on the front lot
line, would be approximately 127 feet," including the garage as
attached.
In January 1994 plaintiff applied to the Board of Adjustment
of the Township of Colts Neck (Board), requesting (1) a determination that the "enhanced setback provisions" in Note 4 did not apply
to his property, or (2) a dimensional or bulk variance, pursuant to
N.J.S.A. 40:55D-70(c)(2) of the Municipal Land Use Law (MLUL), from
the "enhanced minimum rear yard and side yard provisions" of Note
4. The Board denied both his interpretative application and his
variance application.
Plaintiff then filed a two-count complaint in lieu of
prerogative writ against defendant Colts Neck and the Board. In
the second count, plaintiff demanded a judgment declaring Note 4
null and void. On October 19, 1995 the judge rendered a decision
declaring "Article Seven, Section 711, Note 4, invalid," based on
his conclusion "that the method of determining the front lot line
projection bears no real and substantial relationship to the stated
goals . . . for which Article Seven, Section 711, Note 4 was
enacted." On November 13, 1995 the judge entered judgment in
plaintiff's favor on the second count of his complaint,
"invalidating the provisions of Article 7, Section 711, Note 4."
From this judgment, and only this judgment, defendant appeals.
Plaintiff does not appeal from the denial of his variance
application.
On appeal defendant primarily contends that the judge erred
because Note 4 is a "valid enactment under the Municipal Land Use
Law and the New Jersey and United States Constitutions." We
disagree and affirm. The judge did not fatally criticize either
the "concept of enhanced setback requirements" or the "enhanced
setback requirements" embraced in Note 4. Rather, the judge was
careful to decide "only that the method of determining the front
line projection, which triggers Article 7, Section 711, Note 4, is
invalid."
We agree with the judge's ultimate conclusion. This section
of the ordinance is invalid because there are no definitions of
terms and no actual method for determining the front lot line
projection in Note 4 or anywhere else in the zoning ordinance.
The ordinance contains no definitions for these terms used in
Note 4: (a) "length of the principal building," (b) "projected,"
(c) "front lot line," and (d) "building projection." Nor does the
ordinance describe the method in which the projection should be
determined. Oral argument revealed the critical nature of these
elements, especially where the lots are odd-shaped and not
rectilinear; the streets are curved; cul-de-sacs exist, and the
structures are customized and not uniform in configuration, or
canted or angled to the street, or indeed all of the these
conditions exist.
Glenn Gerken, defendant's township engineer since 1980, testified that Note 4 was first adopted on October 2, 1990. Gerken
said that he had "developed the procedure that [he] utilize[d]" to
determine "whether the provisions of Note 4 apply to a particular
property and a particular dwelling." Gerken testified that this
procedure was not "set forth in Note 4" and that, while his
procedure was the "only procedure [he] use[d]" to decide Note 4
questions submitted to him, he did not know if anybody else who
reviewed Note 4 questions used a "different technique" to determine
"whether Note 4 applies or does not apply."
Gerken said that the multi-step procedure he had developed was
primarily based on "common sense," and had been developed over time
by "trial and error." Gerken was then asked to explain his
procedure. He said:
Q: What's the first step that you would
do?
A: All right. What we would do is take
the side lot lines and extend them out so they
intersect at the street line.
Q: Okay.
A: Now I realize street line is not
defined in the ordinance. But I consider the
lot line along the street.
Q: Okay. So . . . that in your way of
thinking, the front lot line is the street
line.
A: No question about it.
THE COURT: What's the next step you do?
After you get to the front line, what's the
next step that you do?
THE WITNESS: You take a straight line and
connect it from the two points of intersection
along the street line.
BY MS. HEFFERNAN:
Q: What's your third step?
A: Third step is we establish . . .
perpendicular line[s] created in step two,
just like a pair of dividers, and we moved
those lines till it touches the two extreme
portions of the lot [sic; house] which projects towards the street.
Q: And your fourth step.
A: Measure the distance along the line
created in step two.
Q: And what does that give you?
A: Projected length.
THE COURT: Projected length of the house.
THE WITNESS: Correct.See footnote 1
The judge then asked Gerken to explain the rationale behind
his measuring procedure, and Gerken explained that the "rationale
is what does somebody who is going along that street see of that
house from the street." Gerken also explained that, by projected
length of the house, he meant the length between the "most extreme
limits of the house" as projected "along the street line."
Finally, Gerken explained that he took the "straight line distance
rather than a curve or linear distance along the street" in order
to give the "benefit of the doubt to the applicant in every case"
because, otherwise, "you'd always end up with a much longer
distance." According to Gerken, the primary purpose of Note 4 was
"aesthetics." The objective of Note 4 was to ascertain "how much
[of the house] is facing the street line" from the visual
perspective of "somebody who is going along that street."
William Queale, Jr., a professional planner, also testified on
defendant's behalf. Queale expressed that the principal purpose of
Note 4 was to reduce the "perception of overcrowding" by reducing
the "perception of a wider building" as viewed from the street
line. In other words, the "major thrust" of Note 4 was to reduce
the "visual impact that a wider house might have versus a [more]
narrow house."
Richard DiFolco, an engineer and planner, testified on plaintiff's behalf. DiFolco thought that Note 4 was "vague" and "not
clear," because in Note 4 "[t]here is not [a] sufficient or a
developed standard way of measuring the length or defining things
such as the projection, which way you measure a projection, in
order to come up with a uniform answer all of the time." Because
under Note 4 the "actual length" of the house did not necessarily
equate with the "projected length" of the house "as it's measured
at the street line," DiFolco also said that "invocation of the
enhanced setback requirements" of Note 4 was, in some cases,
"dependent on something in addition to the [actual] length of the
house," namely, on the "angle the house makes with the property
line at the street." As DiFolco explained, solely by changing the
angle of the house in relation to the front lot line, a house that
was less than ninety feet in actual length could be rotated to
project more than ninety feet on the front lot line, and a house
that was more than ninety feet in actual length could be rotated to
project less than ninety feet on the front lot line. Thus while
neither the footprint size nor the height of the house would
change, such maneuvering would trigger the enhanced setback
requirement.
On cross-examination, Queale acknowledged the accuracy of this
proposition. However, because the primary purpose of Note 4 was to
improve the "visual environment" by reducing the "visual impact
that a wider house might have versus a [more] narrow house," Queale
saw no legal relevance to this fact. In other words, Note 4 was
not concerned with the angle of the house to the street per se, but
rather with the perceived length of the house "when projected onto
the street."
While the judge noted that "the purpose of Article Seven,
Section 711, Note 4 was to maximize the appearance of open spaces,"
he concluded that "the method of determining the front lot line
projection bears no real and substantial relationship to the stated
goals . . . for which Article Seven, Section 711, Note 4 was enacted." Therefore, he held "only that the method of determining
the front lot line projection, which triggers Article 7, Section
711, Note 4, is invalid."
The judge explained his holding as follows:
Cross-examination of Mr. Queale explains the
court's determination, keeping in mind the
stated goal of the enhanced setback
requirements. On cross-examination, Mr.
Queale testified that a dwelling with a length
of 90 feet, when parallel to the street, would
have a projected length of 90 feet. If,
however, you rotate the same dwelling a few
degrees, the dwelling will have a projected
length in excess of 90 feet. The structure
has exactly the same dimensions, and the
amount of unused land remains the same;
however, the enhanced setbacks would be
required.
Assuming one proposed a building with an actual length of less than 90 feet, by merely rotating the building, this same structure would trigger the enhanced setback requirements, even though the structures are identical, and the open spaces surrounding these structures are identical. Accordingly,
the method used to determine the projected
front line bears no real and substantial
relationship to the desire for open spaces.
As noted above, merely rotating a structure
alters the front line projection.
Accordingly, there appears to be no real and
substantial nexus between the front line
projection and the amount of open space upon a
piece of property. This conclusion is
supported by the testimony adduced at trial.
This finding does not invalidate the concept
of enhanced setback requirements. What it
requires is a method of determining the front
line projection that bears a real and
substantial relationship to the amount of open
space present, and to the actual length of the
building.
A zoning ordinance enjoys a presumption of validity. The party attacking the ordinance bears the burden of overcoming this presumption. Riggs v. Long Beach Tp., 109 N.J. 601, 610-11 (1988). To be valid, the ordinance "must advance one of the purposes of the Municipal Land Use Law as set forth in N.J.S.A. 40:55D-2." Id. at 611.
Two purposes of the MLUL set forth in N.J.S.A. 40:55D-2 are:
c. To provide adequate light, air and
open space;
. . . .
i. To promote a desirable visual
environment through creative development
techniques and good civic design and
arrangement. . . .
For this reason, N.J.S.A. 40:55D-65(b) specifically states, in
material part, that a zoning ordinance may:
Regulate the bulk, height, number of
stories, orientation, and size of buildings
and the other structures; lot sizes and
dimensions; and for these purposes may specify
floor area ratios and other ratios and
regulatory techniques governing the intensity
of land use and the provision of adequate
light and air. . . .
A zoning ordinance may "accommodate aesthetic concerns," and
the "[c]oncern with aesthetics" is subsumed within the purposes
enumerated in N.J.S.A. 40:55D-2(c) and -2(i). State v. Miller,
83 N.J. 402, 409-10 (1980). The "consideration of aesthetics" in
municipal land use law and planning is frequently termed "aesthetic
zoning." Id. at 409-11. The Supreme Court has observed that
"aesthetic qualities are best maintained through the use, inter
alia, of lot size, setbacks, side yards, lot coverage ratios, topographical and landscaping requirements." Home Builders League of
South Jersey, Inc. v. Berlin Tp.,
81 N.J. 127, 145-46 (1979).
While "aesthetics is certainly a legitimate aim of zoning," it
is an aim that "must be accomplished within clearly defined
limits." This is not always easy because the "question of aesthetics is both abstract and subjective." Diller & Fisher Co. v.
Architectural Review Bd. of Bor. of Stone Harbor,
246 N.J. Super. 362, 371-73 (Law. Div. 1990). Because of this, legislative
attempts to "quantify" the concept of aesthetics and to establish
"standards" can be, at best, "irksome." Id. at 373.
A court must decide not only whether a proper legislative goal
is sought by the zoning ordinance, but also whether that goal is
"achieved in a manner reasonably related to that goal." The means
used to attain the legislative end must be reasonably related to
it. Home Builders League, supra, 81 N.J. at 138-39. The ordinance
"must comport with constitutional constraints on the zoning power,
including those pertaining to due process." Riggs, supra, 109 N.J.
at 611. In determining the validity of a zoning ordinance, the
question is not whether the ordinance will accomplish its goal in
every circumstance, but whether there are conceivable circumstances
under which it will accomplish its goal. Zilinsky v. Zoning Bd. of
Adj. of Verona,
105 N.J. 363, 368 (1987). If the rational
relationship between the means chosen to achieve the legitimate
zoning purpose is "at least debatable," the ordinance must be
sustained. Id. at 369.
After correctly noting that "the purpose of Article Seven,
Section 711, Note 4 was to maximize the appearance of open spaces,"
the judge invalidated the "method of determining the front lot line
projection," because it bore no real and substantial relationship
"to the amount of open space present, and to the actual length of
the building." We disagree to an extent with the judge's
reasoning. Because the purpose of Note 4 is to maximize the
appearance of open space around a building, Note 4 is not concerned
with the amount of actual open space around the building or with
the actual length of the building. The building itself does not
change size and will always conform to the maximum lot coverage
requirement. Note 4 is only concerned with the perceived length of
the building as "projected on the front lot line." If the
"building projection" on the front lot line "exceeds 90 feet," the
enhanced setback requirements of Note 4 are triggered.
The judge also observed that "there appears to be no real and
substantial nexus between the front lot line projection and the
amount of open space upon a piece of property." This is true, but
not particularly relevant because the purpose of Note 4 is to
"maximize the appearance of open spaces," especially from the
street, of developed property, not to increase "the amount of open
space upon a piece of property."
The judge concluded "only that the method of determining the
front lot line projection, which triggers Article 7, Section 711,
Note 4, is invalid," because it bore no real and substantial
relationship "to the desire for open spaces," or "to the amount of
open space present, and to the actual length of the building."
Again, this proposition is basically true, but not particularly
relevant because the purpose of Note 4 is only to maximize the
appearance of open spaces.
The judge was correct in his ultimate conclusion that the
"method of determining the front line projection" is invalid. Note
4 is invalid because it is "impermissibly vague and ambiguous."
Note 4 itself "provides no definitions, standards or criteria for
calculating a `projection' on a `front lot line'." The balance of
the ordinance is no more helpful in this respect.
A zoning ordinance must meet the "test of certainty and
definiteness." Morristown Road Associates v. Bor. of
Bernardsville,
163 N.J. Super. 58, 67 (Law Div. 1978). If the
ordinance fails this test, it must be "invalidated as impermissibly
vague and indefinite." Id. at 68. See J.D. Construction Corp. v.
Bd. of Adj. of Freehold Tp.,
119 N.J. Super. 140, 149-50 (Law Div.
1972) ("zoning ordinance must be clear and explicit in its terms,
setting forth adequate standards to prevent arbitrary and
indiscriminate interpretation and application by local officials";
zoning ordinance must be invalidated if "requirement[s] of clear
terms and adequate standards" not met). See also Lionshead Woods
Corp. v. Kaplan Brothers,
250 N.J. Super. 545, 548-51 (Law Div.
1991) ("law is well settled that a zoning ordinance must be clear
and explicit in its terms, setting forth sufficient standards to
prevent arbitrary and indiscriminate interpretation or application
by local officials"). In Lionshead Woods the ordinance "did not
specify" the procedure to be used in determining the number of
permitted midrise units and allowed local zoning officials to
"indiscriminately" devise their own procedure. The ordinance was
held "impermissibly vague because it lacks clear standards to guide
either an applicant for development or the local officials who must
administer it." Id.
Lack of definition and standards for application is the basic
problem with Note 4. As noted, the zoning ordinance does not
define any of the material terms used in Note 4: (a) "length of
the principal building," (b) "projected," (c) "front lot line," and
(d) "building projection." No objective and precise method for
determining the front lot line projection is set out in Note 4, or
anywhere else in the ordinance. The method or methods of
determination used by defendant's local engineer or zoning
officials, though presumably in good faith, are simply methods
formulated by those officials based on their "common sense" and
their "trial and error."
Defendant retorts that the "terms contained in the Colts Neck
Ordinance . . . are completely clear," because the "calculations
necessary for applying Note 4 are done in consistent fashion by a
set procedure" formulated "by the Township Engineer." This does
not render the "provisions of Note 4" completely clear. Somewhat
inconsistently, defendant also contends that there is a "set
method" in Note 4, in that there are "explicit provisions in the
ordinance which tells the official how the measurement [on the
front lot line] is to be done." The township engineer, however,
testified to the contrary and we find no such provisions in the
ordinance.
Because there is no "method of determining the front lot line
projection" in Note 4, we agree with the judge's ultimate conclusion that the "method of determining the front lot line projection,
which triggers Article 7, Section 711, Note 4, is invalid." We
make no suggestion that defendant is forbidden from regulating the
perception of an oversized improvement by use of an enhanced front
setback requirement. The defendant may rationally require that the
longer the building is, as perceived from the street, the deeper
the front yard must be. But the ordinance so commanding must be in
clear terms, either by precise definition or common understanding,
and set forth an objective and uniform method of calculating the
setback required. The municipality cannot simply leave the entire
process in the hands of its agents, no matter how well
intentioned.
There is nothing improper about municipal concern with
aesthetics. "Creation of a desirable visual environment is a
zoning purpose specified by N.J.S.A. 40:55D-2(i) [`to promote
desirable visual environment through creative development
techniques and good civic design and arrangements'] and
municipalities have ample authority under the MLUL to work toward
that purpose." Cox, New Jersey Zoning & Land Use Administration §
34-8.6 (1996). But municipalities must do so with reasonable
precision and without blanket delegation.
Finally, defendant contends that plaintiff "should not have been permitted to challenge the constitutionality" of Note 4 "since the challenge was well beyond the statute of limitations" and the judge erred in "holding that the time restriction for bringing an action in lieu of prerogative writs should be relaxed in this case." We disagree.
Note 4 was adopted on October 2, 1990; plaintiff filed his complaint in lieu of prerogative writs on April 7, 1994, over three years later. However, this action was filed within 45 days of the date the Board's ruling under Note 4 affecting plaintiff's property
became final. In general, no action in lieu of prerogative writs
"shall be commenced later than 45 days after the accrual of the
right to the review, hearing or relief claimed." R. 4:69-6(a).
The court may enlarge this time period "where it is manifest that
the interest of justice so requires." R. 4:69-6(c). The judge
here so found, saying:
Moving briefly to defendant's contention
that this court not reach the constitutional
question posed, as such is time barred. Rule
4:69-6(c) provides for enlargement of the 45
day time period where "it is manifest that the
interest of justice so requires." The within
matter requires the time limit to be enlarged,
as the issue before this Court affects all
properties located within the A-1, A-2, A-3
and AG zones of the township.
R. 4:69-6(c) (formerly R.R. 4:88-15(c)) was "merely an attempt
to restate[,] in the form of a generalized standard, decisional
exceptions which had already been engrafted upon the rule." Schack
v. Trimble,
28 N.J. 40, 48 (1958). These implicitly included
exceptions "included cases involving (1) important and novel
constitutional questions; (2) informal or ex parte determinations
of legal questions by administrative officials; and (3) important
public rather than private interests which require adjudication or
clarification." Brunetti v. Bor. of New Milford,
68 N.J. 576, 586-87 (1975). Accord Reilly v. Brice,
109 N.J. 555, 558 (1988).
Cases decided subsequent to the adoption of paragraph (c) in
1957 "confirm that consideration of substantial constitutional
questions warrants relaxation of the time limits of R. 4:69-6 `in
the interest of justice.'" Brunetti, supra, 68 N.J. at 587. See
Catalano v. Pemberton Tp. Bd. of Adj.,
60 N.J. Super. 82, 96 (App.
Div. 1960) ("even prior to the amendment of the rule by R.R. 4:88-15(c), it was recognized that cases in which ultra vires acts, or
acts affecting the constitutional rights of a plaintiff, were found
to exist were not barred by the time limitation in the rule"). See
also Ballantyne House Associates v. Newark,
269 N.J. Super. 322,
330 (App. Div. 1993) ("Actions in lieu of prerogative writs
challenging the constitutionality of municipal ordinances have long
been afforded the benefit of such enlargements of time.").
We find defendant's untimeliness contention clearly without
merit.
Affirmed.
Footnote: 1Gerken's report prepared for this litigation gave this
description of his technique:
This report is being written to describe
how I have interpreted Note 4 from Section
711, "Schedule of Limitations and Requirements
Applicable to Each Zone" as contained on Page
162 of the Development Regulations Ordinance.
Note 4 reads as follows:
"In the A-1, A-2, and AG Zone, if the length
of the principal building, projected on the
front lot line, exceeds 90 feet, the required
front, each side and rear yard requirements
shall be increased one foot for each foot the
building projection exceeds 90 feet."
Procedure to determine projected width:
1. Extend the minimum side
yard set back on each side to
intersect the front lot line.
2. Connect the two
intersecting points created by No. 1
above with a straight line and
extend beyond the intersection
points as needed for No. 3 below.
3. Project at 90* angle to
the line created in No. 2, a new
straight line on each side of the
structure and position it so that it
touches the outer most portion of
the structure.
4. Measure at right angles
the distance between the two lines
created in No. 3 above. THIS IS THE
LENGTH OF THE PRINCIPAL BUILDING
PROJECTED ON THE FRONT LOT LINE.
The above procedure works well for most situations, even for irregular lots on outer and inner radius: On cul-de-sac lots which wrap around the bulb, where the side setback
line never intersects the street lines, some
modifications are required.
There are five examples of different lot
configurations attached hereto which shows the
above procedure.