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Zoning Out
by Ron Davis

A legal technicality has put construction plans for a New Jersey shopping center on hold for the time being.

The shopping center, set for development on a 30-acre tract of property in Deptford, is to have a Wal-Mart store and several retail shops. But that property falls within an "Office Campus" zone, which forbids retail operations within its boundaries.

The shopping center developer, Wolfson Group, Inc., therefore asked the Deptford Planning Board to change the zone that included its property to "Town Center." Such a zoning change would allow the shopping center construction.

The Deptford Planning Board voted unanimously to recommend to the Deptford Township Council that the property be rezoned. In response, the Council passed an ordinance to that effect. Both the Planning Board and the Township Council found the rezoning to be consistent with a master plan that governed development of the area.

Opponents of the shopping center argued, however, that the rezoning was in fact inconsistent with the master plan. And they sued to stop the development.

At this point, a reading of the master plan laws, as passed by the New Jersey Legislature, complicated any settlement of the issue. Those laws allow a local government body to rezone a property, but the local government must "give the reasons...for so acting." In other words, the local government body must recognize that it is adopting a rezoning that is inconsistent with the master plan when it expresses the reasons for its actions.

Because the Deptford Township Council always maintained that the rezoning of the Wolfson Group property was consistent, it had violated the letter of the law.

A New Jersey appellate court therefore rejected the rezoning, explaining, "Before adopting a zoning amendment inconsistent with the master plan, a local government body must expressly recognize the inconsistency. This will give effect to the significance the State Legislature attached to the master plan.... Recognition of inconsistency simply flags the significance of the proposal and its potential impact on land use." (Willoughby v. Wolfson Group, Inc., 753 A.2d 162 [N.J. Super. A.D. 2000])

Decision: June 2000
Published: July 2000



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