ELR Citation: ELR 20243
No(s). 89-0234 (JCL) (D.N.J. Jul 28, 1989)

The court holds that a township ordinance limiting development in "critical areas," including wetlands, is constitutional and is not preempted by the New Jersey Freshwater Wetlands Protection Act. However, the section of the ordinance reducing the permissible area available for development on properties containing critical areas is inconsistent with the New Jersey Municipal Land Use Law (NJMLUL). The township of Clinton adopted an ordinance that required developers to obtain certain documentation and that reduced the permissible area available for development on properties containing critical areas. Adoption of the ordinance reduced plaintiffs' allowable building and parking lot size. The court first holds that the case is not moot, since live federal constitutional issues not adjudicated in any other court exist. The court further holds that plaintiffs' facial challenge to the ordinance pursuant to the Fifth and Fourteenth Amendments is ripe for adjudication.

The court holds that the ordinance does not constitute a taking without just compensation because plaintiffs have not met their burden of showing that the ordinance has deprived them of economically viable uses, real or expected, of their property. Mere diminution in the value of land caused by government restrictions does not constitute a taking. The court holds that the ordinance does not violate due process because the record does not establish that the township's choice of ordinance does not substantially advance the township's interest in protecting and maintaining ecologically sensitive areas.

In exercising pendent jurisdiction over the remaining state law claims, the court holds that the ordinance does not violate under the New Jersey Constitution, since plaintiffs have not made a sufficient showing on the record that the ordinance deprives them of a reasonably profitable use of their property. The court further holds that the ordinance is not preempted by the New Jersey Freshwater Wetlands Protection Act. The court observes that plaintiffs' argument is convincing that the ordinance is in conflict with the state's regulatory scheme. The Act allows developers to request a letter of interpretation from the state to determine the existence and quality of wetlands and whether the proposed development will adversely affect them. By contrast, the ordinance requires a developer to include a letter of interpretation as part of the environmental impact statement. However, the court denies plaintiffs' motion for summary judgment, since the record is insufficient to show that a conflict in policy or operational effect between the Act and the ordinance exists. The court holds that the ordinance is inconsistent with the enabling state law because the township went beyond its statutory grant of power by defining "floor area ratio" in the ordinance differently from how it is defined in the enabling statute. Section 2 of the ordinance is null and void because, unlike the NJMLUL, it requires the floor area ratio to be calculated by reducing the total area of the site by the "critical areas."

Counsel for Plaintiffs
A. Dennis Terrell, Elizabeth S. Soriano
Shanley & Fisher
131 Madison Ave., Morristown NJ 07960-1979
(201) 285-1000

Counsel for Defendant
David Vaida
Vaida & Vaida
9 Main St., Flemington NJ 08822
(201) 782-1801