NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1595-07T11595-07T1

ROCKY HILL CITIZENS FOR RESPONSIBLE

GROWTH, an unincorporated association;

SUSAN BRISTOL, JANE OAKLEY, CONSTANCE

GREIFF, JOAN ECKSTEIN, CARON WENDELL,

AMY GOTTSCHALK, JOHN FRANK and

CORRINE MARCH, individually and as

members of Rocky Hill Citizens for

Responsible Growth,

Plaintiffs-Appellants,

v.

PLANNING BOARD OF THE BOROUGH OF

ROCKY HILL; MAYOR and COUNCIL OF

THE BOROUGH OF ROCKY HILL,

PULTE HOMES OF NEW JERSEY, a

Limited Partnership; SCHAFER

CAPITAL MANAGEMENT and

DAVID SCHAFER,

Defendants-Respondents.

________________________________________________________________

Argued November 10, 2008 - Decided

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1633-06.

Walter R. Bliss, Jr., argued the cause for appellants.

Donald R. Daines argued the cause for respondents Pulte Homes of New Jersey, Schafer Capital Management and David Schafer (Hill Wallack, attorneys; Henry T. Chou, on the brief).

Valerie J. Kimson, attorney for respondent Planning Board of the Borough of Rocky Hill, joins in the brief of respondents Pulte Homes of New Jersey, Schafer Capital Management and David Schafer.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, attorneys for respondents Mayor and Council of the Borough of Rocky Hill, join in the brief of respondents Pulte Homes of New Jersey, Schafer Capital Management and David Schafer.

The opinion of the court was delivered by

CARCHMAN, P.J.A.D.

The Borough of Rocky Hill, a small Somerset County municipality established in the 19th Century, consisting of 600 residents and approximately 250 homes, incorporates within its geographic borders, a Historic Preservation District (the District or HPD) that encompasses the critical core of the municipality and "defines the community." To secure its historical and architectural heritage, defendants Mayor and Council of the Borough of Rocky Hill (Borough or Council) adopted a Development Regulations Ordinance (DRO). The DRO incorporated general criteria for new construction within the District.

In 2003 and 2004, defendant Rocky Hill Planning Board (Planning Board or the Board) considered the rezoning of certain areas of the Borough consistent with the then existing master plan. Included within the considered rezoning was a fifteen-acre tract of land owned by defendant David Schafer. The proposed zoning reduced the density of the Schafer tract prompting a challenge to the plan and resulting in a settlement with Schafer (settlement agreement). The settlement ultimately resulted in a zoning and master plan change creating an age-restricted residential zone that would permit an increase in density from twenty-eight units to thirty-four units in seventeen duplex buildings.

The adoption of the ordinance and master plan did not go unnoticed by the residents of the municipality. In fact, the consideration of the settlement, ordinance and master plan prompted numerous public hearings and discussions, resulting in the adoption of, and a notice of adoption of the ordinance published on December 31, 2004.

As expected, a development application soon followed in May 2005, and after extended consideration including at least six public hearings, the planning board approved the application, finally memorializing its approval in a September 12, 2006 resolution. In response to the approval, a lawsuit followed challenging not only the approvals but the underlying ordinance that established standards for the newly created zone.

Following a motion for summary judgment addressing the timeliness of the action and a later bench trial on the merits of the zoning application, Judge Accurso, in the Law Division, concluded that: 1) the challenge to the validity of the ordinance was not timely; and 2) the Planning Board's approval of the project was proper. We now affirm.

I.

While we have provided a brief summary of the facts, we consider it appropriate to provide a more expansive discussion of the relevant facts to place the issues in proper context.

In March 2004, the Planning Board presented to the Borough a proposed ordinance that rezoned portions of the Borough consistent with the master plan then in effect. One of the properties to be rezoned was a fifteen-acre tract owned by Schafer. Schafer filed an objection to the proposed rezoning, and in November 2004, Schafer and the Borough entered into a settlement agreement. Pursuant to the settlement agreement, the Mayor and Council amended the proposed ordinance. The amended ordinance (the ordinance or Section 704) removed Schafer's property from the R-1A zoning district, and placed it in a newly created R-1C zone, which was entitled "Age Restricted/Traditional Neighborhood Development." The ordinance also allowed for thirty-four residential units, comprised of seventeen duplexes, to be built on Schafer's property. At least one resident of the proposed development had to be fifty-five years of age or older, and no residents were permitted if below eighteen years of age. On November 15, 2004, the Council approved the settlement agreement.

On December 14, 2004, the Planning Board held a public meeting and considered the ordinance, as well as several amendments to the master plan. The Planning Board approved the amendments to the master plan and voted to recommend approval of the ordinance. On December 20, 2004, following a public hearing, the Mayor and Council adopted the ordinance. On December 31, 2004, notice of the ordinance's adoption was published, and it was codified at Section 704 of the DRO.

On May 19, 2005, defendant Pulte Homes of New Jersey (Pulte) filed an application for preliminary and final subdivision approval and an application for historical preservation plan approval for the age-restricted development (the application). The Planning Board conducted six public hearings on January 19, February 23, March 30, April 20, May 11 and June 29, 2006, regarding this application. At these hearings, Pulte presented testimony from the site engineer, an architect, a traffic engineer, a licensed blaster, a representative of Pulte and a landscape architect. The Planning Board presented testimony and reports from its own professionals, consisting of a site engineer, two architects, a planner and a historical preservation consultant. Pulte's professionals addressed the various reports prepared by the Planning Board's professionals and answered questions from the Planning Board, its professionals and members of the public.

At the conclusion of the June 29, 2006 meeting, the Planning Board voted against approving the application without discussion. Thereafter, the Planning Board voted to reopen the meeting for further discussion. Because one of the issues raised on appeal addresses concerns about the Board's public deliberations, we briefly describe the substance of the discussion.

Thomas Roshetar, a member of the Planning Board, expressed concerns over the size of the proposed buildings in the application. Roshetar did not believe that these buildings respected the general scale and proportion of the homes in the District, and he urged the Planning Board not to approve the application.

Mayor George Morren stated that he did not disagree with Roshetar; however, he was mindful of the potential of litigation in this case. Additionally, Mayor Morren believed that the residential examples that the architect brought forth reflected recent actions by the Planning Board that, at the time, were considered controversial. Mayor Morren opined that these actions would be a part of the record if there was any litigation, and, therefore, urged approval of the application.

Andrew Youtz, another member, opined that the Planning Board faced a "bit of a paradox" because the ordinance states two standards, one subjective and one objective. Youtz considered that requiring the massing to be "consistent with the historic homes" was a subjective standard, and that the "fixed square-footage number in the ordinance" was an objective standard. Youtz expressed that he did not see how the Planning Board could go by any standard other than the "hard number" found in the square footage requirement. He urged approval of the application because it met this requirement.

Cathy Cann was the next Planning Board member to speak. She stated that although the developer had the right to build homes that were 3,500 square feet, she did not feel that the developer was required to do so. Cann also found it disturbing that members of the Planning Board were considering potential litigation when voting. Robert Ayrey followed Cann. Ayrey noted that he did not have a problem with new construction, he just felt that the homes in the application were too big.

Richard Batchelder spoke next. Batchelder discussed the process surrounding the adoption of the ordinance and stated that the applicants agreed to many compromises throughout this entire process. Batchelder also noted the tax benefits the Borough would receive from having all these new residences without school-age children. Julia Hasser followed Batchelder and declared that her recommendation was the same as his. Hasser also focused on the compromises and observed that the application met the square footage requirements of the ordinance. Finally, Planning Board Chair Charles Pihokken spoke. Pihokken stated that he felt the Planning Board was bound to the prior agreement it made with Schafer and that his vote was consistent with his understanding of this agreement. At this point the Planning Board voted to approve the application, six to three. The Planning Board memorialized this approval in a September 12, 2006 resolution (the resolution). Several members of the public raised questions regarding whether the application complied with the Borough's Historic Preservation ordinance, found at Section 713 of the DRO (Section 713). Section 713 governs the issuance of preservation permits as well as providing requirements for new construction within the District. In response to these inquiries, the Planning Board reviewed the requirements found in Section 704, specifically, Section 704F(8) which states:

Within the development variations in architectural style are encouraged. Buildings and fences shall be designed to be compatible with the architecture and landscape within the [District]. A development meeting the following standards and the standards set forth in Section 704F(6) and (7) shall be deemed to comply with the [District] requirements set forth in Section 713.

[(Emphasis added).]

This section (the deemer clause) then set forth sixteen subsections which comprise various design standards. The Planning Board found that the use of "shall" in Section 704F(8) indicated an intent to require the Planning Board to review whether applications in the R-1C zone comply with Sections 704F(6)-(8). The Planning Board also determined that once it finds an application does comply with these sections, it is required to "deem the application in compliance with the District requirements set forth in Section 713," and additional review under Section 713 is not required.

The Planning Board also reviewed the history surrounding the adoption of Section 704 and the R-1C zone, including the settlement agreement. The Planning Board found that the units submitted in the application were substantially similar in "bulk and design" to the architectural renderings attached to the settlement agreement and were consistent with Section 704. Additionally, the Planning Board's professionals opined that the application did not require a variance from the standards of Section 704.

In determining the appropriate height and bulk standards to apply, the Planning Board stated that Section 704E(3) provided more guidance than Section 704F(8)(i). Section 704F(8)(i) requires that, "[a]ll massing, building and roof forms respect the general scale and proportions of the historic homes of the Borough of Rocky Hill." The Planning Board found that "'respect' is a subjective word without defined standards," and that the actual height and bulk standards are specified in Section 704E(3). Additionally, the Planning Board found that the application met all the bulk requirements of Section 704E(3), and while the proposed buildings were larger than most existing buildings in the Borough, that could not per se "be deemed a lack of respect for the Borough's historic character."

The Planning Board considered testimony from the applicants' architect regarding the sizes and widths of other buildings within the Borough. The Planning Board found that some of the buildings the architect used for his comparisons were commercial rather than residential and that the scale he used for his proposed development elevations was slightly miscalculated. However, the Planning Board determined that given the mix of scale and mass amongst the existing structures, the proposed buildings were "compatible with the architecture and landscape within the [District]." The Planning Board found that the application met the criteria set forth in Section 704F(8), stating that the massing, building and roof forms "respect the general scale and proportions" of the historic homes in the Borough and were compatible with the specified bulk standards of the section.

The Planning Board took notice of the various comments made by members of the public, which demonstrated their concern over the size of the proposed homes. The Planning Board also took notice of the specific testimony of two members of the public, plaintiffs Susan Bristol and Constance Greiff, as well as the exhibits they provided.

The Planning Board acknowledged that the applicants provided architectural and landscaping testimony regarding the proposed homes. Based on these proffers, it found that "the units have open porches, building offsets, and changes in roof form and elevation." The Planning Board determined that the applicants provided adequate proofs to ensure that there would be a diversity in the streetscape. Further, the proposed residential units complied with the "comprehensive development, density, bulk, yard and parking regulations set forth in ordinance Section [704E]," and that the application met the criteria of Section 704F(7).

The Planning Board stated that the application clustered the units "around a village green," encouraged the use of shared driveways and "utilized rear lanes to reduce the number of curb cuts and visibility of driveways and garages." It found that the application was "compatible with the street grid and block arrangement of the village center and [the District]," and met the criteria set forth in Section 704F(6).

Additionally, the Planning Board concluded that the application met the requirements of Sections 704F(3) and 704F(6)(vi). The development contained in the application met the very specific building height, building coverage, lot coverage, and square foot per dwelling requirements set forth in 704F(3). Finally, the Planning Board concluded that the application met all the bulk requirements of the R-1C zone, and that it satisfied the criteria set forth in Sections 704F(6), (7) and (8). Based on these extensive findings, the Planning Board granted the applicants preliminary and final major subdivision approval and historic preservation plan approval. On October 27, 2006, plaintiffs Rocky Hill Citizens for Responsible Growth joined by Susan Bristol, Jane Oakley, Constance Greiff, Joan Eckstein, Caron Wendell, Amy Gottschalk, John Frank and Corrine March (collectively plaintiffs) filed an action in lieu of prerogative writs: 1) challenging the validity of the Planning Board's grant of the application of Pulte Homes, Schafer and Schafer Capital, (collectively defendants), for preliminary and final subdivision approval and historic preservation plan approval; and 2) challenging the validity of Section 704 of the DRO.

After a motion by defendants for summary judgment to dismiss those counts challenging the validity of Section 704, Judge Accurso granted the motion finding that plaintiffs' challenge was untimely under the forty-five day ordinance limitation provisions of Rule 4:69-6. The judge held that the limited public interest did not warrant enlarging the forty-five day period.

Thereafter, following a bench trial, Judge Accurso found in favor of defendants. Among other things, she concluded that there is a presumption of validity in favor of the Planning Board and that the record did not indicate that the Planning Board's findings were arbitrary or capricious. This appeal followed.

On appeal, plaintiffs assert that: the judge erred in determining that their complaint was time-barred under Rule 4:69-6(c); the judge erred in finding that the Planning Board's actions were not arbitrary and capricious; the judge erred in concluding that the Planning Board's interpretation of Section 704 was proper; and the Planning Board failed to make sufficient findings in its resolution. We address the issues seriatim.

II.

The limitations of actions to challenge governmental action is governed by Rule 4:69-6 which provides:

(a) General Limitation. 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, except as provided by paragraph (b) of this rule.

(b) Particular Actions. No action in lieu of prerogative writs shall be commenced

. . . .

(3) to review a determination of a planning board or board of adjustment, or a resolution by the governing body or board of public works of a municipality approving or disapproving a recommendation made by the planning board or board of adjustment, after 45 days from the publication of a notice once in the official newspaper of the municipality or a newspaper of general circulation in the municipality.

. . . .

(c) Enlargement. The court may enlarge the period of time provided in paragraph (a) or (b) of this rule where it is manifest that the interest of justice so requires.

By its terms, such action must be filed within forty-five days of the challenged action; however, there are exceptions to the rule that permit a judge to enlarge the period when the interests of justice so require. R. 4:69-6(c).

The Supreme Court has construed Rule 4:69-6(c) to allow enlargement in cases, which involve: "(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." Horsnall v. Washington Twp. Fire Dist., 405 N.J. Super. 304, 312-13 (App. Div. 2009) (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)). When dealing with public interests, one must balance those interests with the "important policy of repose expressed in the forty-five day rule." Id. at 313 (quoting Reilly v. Brice, 109 N.J. 555, 559 (1988)). As mentioned supra, this "statute of limitations is designed to encourage parties not to rest on their rights." Ibid. However, as plaintiffs note, there have been cases where courts have enlarged the forty-five day requirement. See Concerned Citizens v. Mayor and Council of Princeton Borough, 370 N.J. Super. 429, 447 (App. Div.), certif. denied, 182 N.J. 139 (2004); Willoughby v. Planning Board of Twp. of Deptford, 306 N.J. Super. 266, 277 (App. Div. 1997). See also, Horsnall, supra, 405 N.J. Super. at 314.

Plaintiffs argue that the judge did not reasonably assess the public interest implications of their challenge and that these interests will not be addressed if summary judgment is granted. They assert that since proposed construction on properties in the District must be visually compatible with the existing structures and landscape, the units in the application will change the measures of compatibility going forward. Plaintiffs submit that the motion judge rejected this argument because of the limited record on summary judgment, and that a review of the full record shows that the size, scale and arrangement of the units in the application were vastly different from other structures in the District. Plaintiffs contend this would undermine the "efficacy" of the District. Plaintiffs opine that the gravity of the public interest is evidenced by the diversity amongst the individual plaintiffs, the number of public meetings surrounding the application, the turnout at those meetings, the number of individuals who have made monetary contributions to support this lawsuit, and the number of units in the application, representing a significant percentage of the Borough's housing stock. Plaintiffs conclude that this lawsuit is the only opportunity to decide such an important public interest.

Defendants counter that the motion judge was correct in determining that plaintiffs' complaint was not timely, and that the time for filing should not be enlarged in this case. Defendants argue that the judge properly determined that the potential threat to the "historic" nature of the District was not enough to justify enlargement. Defendants contend that plaintiffs' claims actually revolve around their own subjective displeasure with the size, scale and footprints of the units allowed under the ordinance. Defendants maintain that Judge Accurso correctly distinguished this case from Willoughby, supra, 306 N.J. Super. at 266, and Concerned Citizens, supra, 370 N.J. Super. at 429, two cases relied upon by plaintiffs. Defendants submit that further evidence that this case only involves private interests is the fact that there are only eight plaintiffs, five who live within 200 feet of the development and three who live within walking distance.

Concerned Citizens involved a challenge to a redevelopment designation, which was brought less than a year after accrual. In support of enlargement, we pointed to the plaintiffs' allegations of "numerous violations and misapplication" of the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -73, "as well as arbitrary and capricious municipal action in the redevelopment designation of public lands." Concerned Citizens, supra, 370 N.J. Super. at 447. We observed that the designation would also require the expenditure of public funds through the issuance of bonds. Ibid. Finally, although we noted that the plaintiffs demonstrated a strong public interest by submitting a significant number of signatures opposing the project, ibid., that factor was seriously called into question by our concurring colleague. Id. at 473 ("I would not equate mere numerosity with 'important public rather than private interests that require adjudication.'") (Hoens, J.A.D., concurring). We, too, question whether the number of plaintiffs in a lawsuit or signatures on a petition should impact on the true nature of defining "public interest."

Willoughby, likewise, involved a challenge to an ordinance brought within a year after it was adopted. The ordinance rezoned a particular property owned by Wolfson Group, Inc. from "Office Campus" to "Town Center." Willoughby, supra, 306 N.J. Super. 271. The ordinance prompted the plaintiffs to mount a political campaign resulting in the incumbents being turned out of office. Wolfson submitted an application for site plan approval to the town's planning board. Eventually, the town council adopted an ordinance returning the zoning to Office Campus; however, Wolfson's site plan was approved by the planning board, and the plaintiffs then brought suit challenging site plan approval and the repealed zoning ordinance, which allowed for this site plan. The trial judge refused to enlarge the forty-five day limitation period and dismissed the complaint.

We reversed and determined that development of the property in accordance with the zoning change would have a significant impact on the residents of the adjoining neighborhood and would impact the flow of traffic on a major thoroughfare; moreover, the public would lose access to nature trails due to the rezoning. Additionally, we observed that the claimed benefits of "increased shopping facilities, employment opportunities and tax ratables" as a result of the rezoning were all matters of public interest. Id. at 277. We also noted that the political campaign and municipal election results were both evidence of the public's interest in this matter. Ibid. Finally, we concluded that "[u]nder these circumstances, there [was] no basis for concluding that Wolfson justifiably relied upon plaintiffs' failure to file suit within forty-five days or that Wolfson's interest in repose outweighs the public interest in a decision on the merits of plaintiffs' claims." Id. at 278-79.

We have also sanctioned expansion of the forty-five day limitation where the issue was a "blight designation" and we questioned the constitutional adequacy of the notice to property owners. Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361, 418 (App. Div. 2008). We also affirmed a short expansion of the limitation period where the statutory tenure rights of firemen was at issue. Horsnall, supra, 405 N.J. Super. at 314.

This case is distinguishable from Concerned Citizens, Willoughby, DeRose and Horsnall. None of the factors present in those cases are apparent here. There are no public funds involved, no political upheavals, no significant impact on density, traffic, ratables or any interest other than the concerns expressed by the individual plaintiffs and their supporters and no constitutional implications. Plaintiffs' primary argument is that the ordinance will undermine the "efficacy" of the District and that permissible scale, size, mass and arrangement of future construction in the District will be affected. While certainly the ordinance is of interest to this limited public, this is not the public interest envisioned by the Court in permitting limited expansion of the rule. The cited cases, Concerned Citizens, Willoughby, DeRose and Horsnall, must represent the exception rather than the rule.

Plaintiffs argue that they did not "sleep" on their rights. Plaintiffs admit that Bristol was on the Planning Board when the ordinance was adopted and that she was critical of the ordinance even then. Plaintiffs argue that Bristol, along with other members of the Planning Board, believed that any proposed development under the ordinance, would also have to meet historic preservation review. Plaintiffs assert that there was no way of knowing how the Planning Board would interpret and apply the ordinance until the hearings surrounding the application in 2006, and there were too many unknowns surrounding the ordinance to recommend litigation.

Plaintiffs rely on Adams v. DelMonte, 309 N.J. Super. 572, 581 (App. Div. 1998), where we permitted enlargement when the full aspect of the defendant's enterprise "did not become apparent until the subsequent Planning Board hearing was conducted." Plaintiffs contend that the full extent of the applicants' "enterprise" was not known until the hearings.

Adams is not relevant here. Adams involved a challenge to a zoning board ruling where the board based its determination on information that later turned out to be false and concluded that the objectors' concerns would be more properly addressed by the planning board. Under the facts presented, we concluded that enlargement was proper. Id. at 582. There was no deception here; the ordinance was the subject of intense debate at all times.

Public consideration of this ordinance was extensive. Numerous public hearings were held and participation was substantial. The time to challenge the ordinance was within the prescribed limitation period. The suggestion that there was no reason to move forward to challenge the ordinance because of a lack of understanding as to the Planning Board's interpretation of the ordinance is unavailing. The concerns about the interaction of Sections 704 and 713 were known and articulated. In essence, plaintiffs adopted a "wait and see" attitude that does not foreclose them from attacking the bona fides of the application, but should not form the basis for seeking the extraordinary relief of an extension to allow an attack on the bona fides of the ordinance.

The judge found plaintiffs, especially plaintiff Bristol, to be sophisticated and significant costs were assumed by the developer and the Borough. Given the failure to make a timely challenge, and a nearly two year delay, the Borough also lost the opportunity to timely address and make changes to the ordinance.

We cannot accept a "wait and see" strategy as a basis for granting relief from the limitations rule. All ordinances, at some point, will be subject to the interpretation of the appropriate agency. To suggest that the right to challenge should accrue when the interpretation is contrary to one's view subordinates the public interest in repose to the private interests of the objectors. That is what is suggested here, and it is unacceptable as an appropriate outcome. This ordinance emerged from a cauldron of debate and review. Plaintiffs' view of the merits did not change over the almost two years since the ordinance was adopted. Judge Accurso correctly denied the enlargement of time.

III.

Notwithstanding her conclusion that the challenge to the ordinance was untimely, the judge did consider and reject plaintiffs' challenge to the deemer provision.

Count Four of plaintiffs' complaint asserted that the deemer clause was ultra vires "because it invaded upon the jurisdiction of the Planning Board and preempt[ed] its statutory responsibility in determining compliance with the requirements of the [District]." Judge Accurso disagreed and in doing so, she distinguished Avalon Home & Land Owners Ass'n v. Bor. of Avalon, 111 N.J. 205 (1988); Nickels v. City of Wildwood, 140 N.J. 261 (1995); and Cronin v. Twp. Comm. of Chesterfield Twp., 239 N.J. Super. 611 (App. Div. 1990). She concluded that the cases did not apply here because they all involved a township committee or council "stripping generally a zoning board of a particular zoning power."

In assessing the deemer clause, and considering N.J.S.A. 40:55D-110 and N.J.S.A. 40:55D-20, the judge did not find that this issue involved a significant public interest. Finally, Judge Accurso concluded:

I am moved by the argument that because this is a joint historic commission and zoning and planning board, that the planning board in this instance could not have been stripped of any significant power to review this application by the [d]eemer clause.

And, of course, when you get to [N.J.S.A. 40:]55D-110 to say -- and even were there to be no referral at all, failure to refer the application as required shall not invalidate any hearing or proceeding.

The cases the plaintiff raises are generally stripping a board of zoning authority. I don't find them sufficiently analogous to arise to this level.

Plaintiffs argue that Judge Accurso's legal determinations in regards to the deemer clause were incorrect. Plaintiffs claim that the DRO gives the Planning Board exclusive power in determining whether proposed construction meets the regulations set forth for buildings located within the District. Plaintiffs contend that the deemer clause, Section 704F(8), substitutes the standards set forth in Section 704 for those of Section 713, and supersedes the authority of the Planning Board to determine whether the application complied with Section 713. They assert that this violates N.J.S.A. 40:55D-20, relying on Avalon, Nickels and Cronin as analogous cases supporting this argument. Plaintiffs claim that by distinguishing those cases from the present case, the motion judge did not address their argument. Additionally, while conceding that a failure to seek the advice of the historic preservation commission does not invalidate the proceedings, plaintiffs contend that the Planning Board is required to apply Section 713 to applications in the District, and the deemer clause improperly removes this requirement. Finally, plaintiffs maintain that the Planning Board did not have the authority to cede its jurisdiction in applying the historic preservation regulations.

Defendants counter that the judge correctly determined that the deemer clause did not divest the Planning Board of its historic preservation review powers. Defendants maintain that since in Rocky Hill, the Planning Board also serves as the Borough's Historic Preservation Commission, it exercised its historic preservation review powers during the "pre-adoption planning process" of Section 704 in 2004 and the public hearings regarding the application during 2006. Defendants contend that the ordinance was properly introduced by the Mayor and Council and properly presented to the Planning Board to determine if they were consistent with the master plan pursuant to N.J.S.A. 40:55D-62. Defendants submit that the Planning Board also had the authority to amend the master plan so that the ordinance and master plan would be consistent, which it did, pursuant to N.J.S.A. 40:55D-28(a). Defendants argue that the Planning Board, in its dual capacity, reviewed the ordinance and had an opportunity to object to any aspect of it, including the deemer clause, but instead found that it was consistent with the amended master plan. Finally, defendants agree with Judge Accurso that a planning board's failure to refer an application to the historic preservation commission does not invalidate the Planning Board's actions; therefore, even if plaintiffs' claims are true, they "were of no consequence to the merits of the matter below."

The Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 (MLUL), provides in relevant part that "[a]ny power expressly authorized by this act to be exercised by (1) planning board . . . shall not be exercised by any other body, except as otherwise provided in this act." N.J.S.A. 40:55D-20. "In a municipality having a population of 2,500 or less, the planning board, if so provided by ordinance, shall exercise, to the same extent and subject to the same restrictions, all of the powers of a[] historic preservation commission[.]" N.J.S.A. 40:55D-25(d). One of the powers of a planning board is the promulgation of a master plan. N.J.S.A. 40:55D-28. The planning board may adopt this master plan, and later amend it, so long as it first holds a public hearing. Ibid. A municipality's governing body may adopt a new or amend an old zoning ordinance; however:

[s]uch ordinance shall be adopted after the planning board has adopted the land use plan element and the housing plan element of a master plan, and all of the provisions of such zoning ordinance or any amendment or revision thereto shall either be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements[.]

[N.J.S.A. 40:55D-62.]

First, we agree that Nickels, supra, 140 N.J. at 267; Avalon, supra, 111 N.J. at 211-12 and Cronin, supra, 239 N.J. Super. at 616-17, are distinguishable from the current case. In Avalon, the Court held an ordinance invalid that allowed the expansion of a nonconforming use because it directly contradicted "the Legislature's grant of authority to boards of adjustment to grant variances to permit expansion of nonconforming uses." Avalon, supra, 111 N.J. at 212 (citing N.J.S.A. 40:55D-70(d)). Nickels held an ordinance invalid because it expanded a nonconforming use without declaring it a permitted use in contravention of Avalon. Nickels, supra, 140 N.J. at 266-67. Finally, in Cronin, we held that a soil removal permit was invalid because the governing body of the municipality determined soil removal was a valid nonconforming use in direct contradiction of N.J.S.A. 40:55D-68, which empowers the zoning boards of adjustment to make such determinations. Cronin, supra, 239 N.J. Super. at 617-18. All of these cases reflect a municipality's governing body usurping power statutorily granted to the zoning board of adjustment.

Here, the Mayor and Council presented an amendment to the master plan, pursuant to N.J.S.A. 40:55D-28, which the Planning Board approved. The Mayor and Council also presented an ordinance, pursuant to N.J.S.A. 40:55D-62, amending the zoning requirements encompassing Schafer's property, to the Planning Board. The Planning Board reviewed this ordinance and determined that it was in accordance with the master plan. The Borough has the power to amend zoning ordinances so long as the Planning Board finds it is compatible with the master plan. Under the ordinance, the Planning Board still must approve proposed construction and determine if it satisfies the criteria set forth in the historic preservation regulations. We agree with defendants that the specificity of Section 704, rather than being a "defect," is properly perceived as a "virtue" and provides appropriate and defined standards consistent with the powers entrusted to the Planning Board under the DRO.

We do not share plaintiffs' concern about the governing body legislating the outcome of the Planning Board's actions to avoid "mischief in the hands of the Board." The adoption of Section 704 was not achieved in a vacuum but with the substantial input from the Planning Board itself. In its critical role, it approved the deemer provision and it amended the master plan knowing full-well the impact and relationship of the ordinance, master plan and its role in the approval process. Most significantly, the Board performed and will continue in its dual role as Planning Board and Historical Preservation Commission.

We are satisfied that the Mayor and Council did not usurp the Board's authority by enacting Section 704. To the contrary, the Board's active participation in the promulgation of the ordinance and the development of standards to further the aims of the District in this unique municipality is a salutary reflection of the purposes and intent of the MLUL. The standards outlined in Section 704 provide the guidance and perspective necessary to meet the needs of the municipality. See Pizzo Mantin Group v. Randolph Twp., 137 N.J. 216, 230 (1994) (acknowledging that subdivision ordinances must be both flexible to allow discretion and "reasonably specific to provide guidance and to foster consistency and fairness in their application").

Plaintiffs next claim that the ordinance wrongfully exempts the Schafer property from the burden of regulations which are applicable to the other properties in the District, which amounts to impermissible "spot zoning." We disagree.

The motion judge defined spot zoning as "a rezoning of a lot or a parcel of land to benefit an owner for use incompatible with surrounding uses and not for the purpose or effect of furthering the comprehensive zoning plan." The judge found no spot zoning here, concluding that the case does not involve "the use of the zoning power to benefit a particular . . . private interest rather than collective interest of the community." She distinguished this case from Palisades Properties, Inc. v. Brunetti, 44 N.J. 117 (1965), and Cresskill v. Dumont, 15 N.J. 238 (1954), noting that the deemer clause did not "relieve the property owner from the burden of a general regulation." In fact, the judge determined that the requirements of Section 704 were actually more objectively specific than the requirements of Section 713.

Plaintiffs argue that the test for spot zoning 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."

[Cresskill, supra, 15 N.J. at 249 (quoting Conlon v. Bd. of Pub. Works, 11 N.J. 363, 366 (1953)).]

Plaintiffs continue that the determining factor is the actual effect of the zoning change, as opposed to the subjective motive. Plaintiffs contend that the test is met in this case because the zoning change did not have the effect of furthering the comprehensive zoning scheme of the Borough, and it was designed to avoid the regulations of the District. Plaintiffs cite Trust Co. of N.J. v. Planning Bd. of Freehold, 244 N.J. Super. 553, 560-61 (App. Div. 1990), as an example where, although a "procedural" challenge to the ordinance was time-barred, the court could consider whether the ordinance constituted spot zoning. Additionally, plaintiffs assert that the ordinance creates special, less specific historic preservation regulations for Schafer's property which is not only spot zoning but a violation of N.J.S.A. 40:55D-62(a). Plaintiffs claim that regardless of whether the District should be considered an "overlay zone," as defendants claim, the historic preservation regulation needs to be uniform throughout the District. Plaintiffs state that Section 713 requires that all buildings be compatible as measured by size, scale, mass and arrangement of structure, whereas the ordinance does not mention those specifics, and only makes general statements regarding the buildings' compatibility with the current structures in the District.

Defendants counter that the standards of the ordinance are more specific and stricter than the standards of Section 713. They observe that the ordinance requires specific design standards, as well as standards for the "facades of buildings, cornices, fascia, frieze boards and moldings." Defendants claim that Section 713 uses broad general terms as a part of its requirements. Defendants cite to Section 415A of the DRO, which states that when provisions conflict, the one with stricter or higher standards controls, to show that, even without a deemer clause, the ordinance would govern. Additionally, defendants contend that the District is just an "overlay zone," and that the R-1C district is a separate district that overlaps with it. Defendants conclude that the ordinance complies with N.J.S.A. 40:55D-62 because all the standards are uniform within this district.

Judge Accurso properly defined spot zoning, and plaintiffs properly set forth the test for determining whether a change in zoning is spot zoning. See William M. Cox, New Jersey Zoning and Land Use Administration