OCNL000147-18 04/12/2018 Pg 1 of 7 Trans ID: LCV2018648234 Superior Court of Mew Fersep CHAMBERS OF OCEAN COUNTY COURT HOUSE JUDGE MARLUNE LYNCH FORD P.O. 8OX2191 ASSIGNMENT JUDGE ‘TOMS RIVER, NJ 08756-2191 7329292176 April 12, 2018 Giordano, Halleran & Ciesla, P.C. Attn: Paul H. Schneider, Esq. 125 half Mile Road, Suite 300 Red Bank, NJ.07701 Scoare & Hensel, Esqs. Attn: Steven Secare, Esq. 16 Madison Avenue, Suite 1A ‘Toms River, NJ 08753, Re: Augusta Holdings, LLC. Docket No. OCN-L-147-18 Township of Lakewood, et al. Dear Counsel: This matter came before the Court on the motion of Plaintiff, Augusta Holdings, LLC, for ‘Summary Judgment, Plaintiff in its Complaint challenges the legality of a Lakewood Township Municipal Ordinance codified as Subsection A.1 fiom Section 18-1021 of the Unified Development Ordinance (UDO), Ordinance No. 2017-51, Plaintiff seeks a determination from this Court that the ordinance section in question is illegal and should be severed and stricken, ‘The ‘Defendant Township of Lakewood, opposes this motion. For the reasons set forth in this Opinion, the Court finds that the challenged section is illegal and unenforceable, and should be severed and stricken from the UDO.OCNL000147-18 04/12/2018 Pg 2 of 7 Trans ID: LCV2018648234 BACKGROUND Plaintiff owns approximately 100-actes of vacant land located in the Township's R-40 Residential Zoning District. On December 7, 2017, the Township's governing body adopted Ordinance No. 2017-51 which amended and supplemented Chapter XVII also knowa as the “Unified Development Ordinance,” (UDO). Prior to this amendment, the UDO penmitted residential development in the R-40 residential zone with a maximum density of 4.5 units per gross acre on tracts of atleast 100 contiguous acres, This type of residential development is a permitted conditional use provided the units were adult age restricted. ‘The amended Ordinance (Section 30 of Ordinance 2017-51) allows non-age restricted development at a reduced density of 3.6 units per {gross acre as a “Planned Unit Development" (PUD). This PUD ordinance is not effective however, until cerfain road and transportation improvements are accomplished. The Ordinance does not address a time frame for these road improvements. Plaintiff alleges that since many of the roads are controlled by the State and County and that the Township does not have control over those improvements, a potential developer is left without knowledge of if and when it could develop the property. Plaintiff alleges this provision is an illegal building moratorium in violation of the Municipal Land Use Law (MLUL). Plaintiff further maintains that since there is no factual dispute as to the contingent operation of the Ordinance that itis void as a matter of law, and this matter is ripe for summary judgment, Plaintiff requests that this Court determine subsection A.1 of Section 18-1021 of Lakewood UDO as adopted by Ordinance No. 2017-51 is null and void and should be severed from the Ordinance. Defendant Township agrees this matter is ripe for summary judgment, since there are no facts in dispute es to this section of the Ordinance. | |OCNL000147-18 04/12/2018 Pg Sof 7 Trans ID: LCV2018648234 FINDINGS In Brill v. Guardian, Jus. Co. of America, 142 N.J. 520 (1995), the Court established the current standard for determining whether a party is entitled to summary judgment, The Court stated that under the “new standard, a determination whether there exists a ‘genuine issue’ of ‘material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non- moving parties, are sufficient to permit a rational fact-finder to resolve the alleged disputed issues in favor of the non-moving parties.” Brill, 142.N.J at 540. In establishing a standard for judicial review of a Municipal Land Use Ordinance, the Supreme Court of New Jersey held in Riggs v. Long Beach Township, 109 N.J. 601, 610-11 (1988) that: Municipalities do not possess the inherent power to zone, and they possess that power, which is an exercise of the police power, only insofar as it is delegated to them by the Legislature. 1s Assn. mouth Tp. v. Weymouth Tox ip, SONI. 6, 20 (1976). A zoning Ordinance is insulated from attack by a presumption of validity, which may be overcome by showing that the Ordinance is “clearly arbitrary, capricious or unreasonable, or plainly contrary to fimdamental principles of zoning or the (zoning) statute.” Bow & Arrow Manor v. Town of West Orange, 63 N.I. 335, 343 (1973). The party attacking the ordinance bears the burden of overcoming the presumption, Ward v. Montgomery Township, 28 NJ. 529, 539 (1959); and, in meeting the burden, that party may