Property owners who had successfully challenged a municipal open space ordinance that downzoned their property from one unit per acre to one unit per twenty acres on the purported basis of promoting “smart growth” and protection of environmentally sensitive lands achieved only a short-lived victory.  In the January 22, 2015 decision of Griepenburg v. Ocean Township, the Supreme Court reversed the Appellate Division and reinstated a trial court decision upholding the validity of the ordinance.

The Township amended its Land Use Plan and Master Plan in 2005, and in conjunction with that process the property in question was redesignated through the State Planning Commission Plan Endorsement process from a Suburban PA-2 planning area to an Environmentally Sensitive PA-5 planning area.  In 2006, the Township rezoned all PA-5 designated lands to an environmental conservation district with a density of 1 unit per 20 acres.  The rezoning had the effect of precluding further development of plaintiff’s land.

In the proceedings below, the Appellate Division invalidated the rezoning ordinances as-applied to plaintiff’s property finding that the record lacked credible evidence to support the municipality’s rezoning on grounds of a need to preserve open space to protect environmental resources.  The record lacked evidence, according to the Appellate Division, to justify the conclusion that significant environmental constraints or special resource areas were associated with the property, and the municipality’s simple desire to preserve open space was found to be an insufficient basis for the downzoning.

The Supreme Court reversed, concluding the rezoning ordinances represented a legitimate exercise of municipal zoning authority under the Municipal Land Use Law and were consistent with the Township’s Master Plan.  The Court afforded substantial deference to the fact finding process and determination of the trial court that initially upheld the ordinance.  The Appellate Division’s focus on the absence of significant environmental constraints or special resource areas on the parcel in question was too narrow according to the Court, because the Township’s Master Plan goals were broader in scope and encompassed not only protection of resources associated with the specific property in question, but also protection of contiguous open space corridors and forested upland areas.  In this context, the Court gave weight to testimony of the Township’s planning expert who stressed that the subject property was contiguous to other forested, undeveloped lands creating a buffer between those lands and the Township development center.  The Court held the Township was not required to establish that every downzoned parcel contains evidence of endangered species or other environmental conditions to justify its planning objectives.

The Court also noted that plaintiff did not provide sufficient expert evidence to establish that the property should not be included in the conservation district based on habitat differences and differing environmental conditions, suggesting that the opportunity for a different result may have existed if such evidence had been presented.  While this may have been plaintiff’s burden, it seems apparent that had evidence of specific environmental resources of concern existed with respect to the property in question, such evidence would have been presented by the Township in further support of its planning action and defense of the litigation.  The record does not reflect that such evidence was presented by the Township, but rather, that evidence of freshwater wetlands, flood plains, or protected species was not established.  The failure of the Township to present such evidence suggests that environmental resources warranting special protection do not exist with respect to the property as determined by the Appellate Division.

The Court also based its decision in part on the finding that plaintiff failed to seek a variance from the Ordinance, and did not exhaust available administrative remedies.  While exceptions to the exhaustion doctrine such as “futility” and “irreparable harm” exist to promote the “interests of justice”, those exceptions are not absolute in landowner as-applied challenges to municipal ordinances, and the Court found plaintiff did not satisfy the grounds for an exception to the exhaustion doctrine.

This case is a somber reminder of the challenges landowners face in the development process.  Developers must address the myriad of environmental permitting and regulatory programs in place for the purpose of ensuring the protection of environmental resources.  However, even when conditions warranting special protection are absent, development opportunity may be thwarted due to municipal planning action implemented to protect off-site environs.  Landowners and developers who seek to challenge such action face a heavy burden, and should carefully evaluate available administrative remedies when considering litigation.