Residents to challenge zoning change in court
Carduners allege Roosevelt violated their due process rights
BY JENNIFER KOHLHEPP
Staff Writer

ROOSEVELT - A North Rochdale Avenue couple has filed a civil action lawsuit against the borough.

The Princeton law firm of Mason, Griffin & Pierson served the borough and its Planning Board with the complaint on behalf of Brian and Victoria Carduner, of 68 N. Rochdale Ave., on June 26. Attorney Michael R. Butler is representing the Carduner family.

Mayor Elsbeth Battel said, "We have been served with a lawsuit by the Carduners challenging resolution 97-36, but a court date has not yet been set."

The lawsuit comes as a result of the Planning Board's decision to recommend the borough rezone some of the largest developable parcels in town, located in the borough's R/AG-400 zone. The Carduners live in that zone.

The borough's master plan explains the purposes of the R/AG-400 zone as promoting agricultural retention to minimize sprawl and preserving the original agro-industrial design of the borough. To these ends, the borough adopted ordinance 97-31 on April 25, 2005, to eliminate all permitted uses in the R/AG-400 zone except for farming and single-family attached dwellings. The ordinance also allowed for the breeding, raising, training, boarding and/or rehabilitation of horses as a conditional use in that zone.

However, on March 29 of this year, the borough's planning consultant submitted a master plan re-examination report to the Planning Board for consideration. The purpose of the re-examination report, prepared in accordance with the Municipal Land Use Law (MLUL), is to periodically re-examine the master plan, zoning and land development regulations of a municipality to determine whether they continue to address the development goals and objectives of the municipality and to provide recommendations for changes that will address changes in the development goals and regulations.

This report found that although the borough has worked to preserve its original agricultural areas and although dormitory use is not regulated by the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000, the borough should amend the regulations for its R/AG-400 zone to permit houses of worship, public and private schools, dormitories and athletic fields.

The Carduners are taking issue with the Planning Board adopting the re-examination report without comment on the same day that it was introduced. The family also takes issue with the board having referred to a proposed ordinance 97-36, titled "An ordinance amending the zoning ordinance of the borough of Roosevelt to amend R/AG-400 zone" at the same meeting in which it adopted the re-examination report.

On April 11, the board held a public hearing on the proposed ordinance 97-36. At the conclusion of the hearing, the board found that the ordinance is inconsistent with the borough's master plan but should be adopted anyway. The board considered the addition of a dormitory as a permitted use in the R/AG-400 zone "a natural corollary" to the conditional uses for the zone as stated in the master plan and consistent with the re-examination report. The board memorialized its findings on the ordinance in a resolution adopted on April 17.

The Borough Council set its public hearing on the ordinance on April 23, six days after it adopted the resolution by the board. The borough's planner and special counsel provided testimony regarding the ordinance and its relationship to RLUIPA.

At that time, the borough's special counsel, Howard Cohen, explained that since RLUIPA is a federal law, all municipalities fall subject to it. He explained that once a religious institution asserts its right to express its religion, it falls upon the government to comply with that stated interest and to provide the least-restrictive means of satisfying that stated interest.

A yeshiva moved into the Homestead Lane synagogue in the borough in 2005. The yeshiva has expressed interest in renovating the synagogue property and also developing a dormitory in town.

Dormitories were formerly not a permitted use in town, but ordinance 97-36 permits their development in the R/AG-400 zone.

During the council's public hearing on the ordinance on April 23, Victoria Carduner and Butler spoke out against its potential adoption.

After the public hearing, Carduner told the Examiner that she felt as if council members had already made up their minds about passing the ordinance before hearing public comment.

"I'm concerned that the whole thing happened so fast," she said at that time.

In their lawsuit, the Carduners are alleging that the borough did not give the public sufficient time to review and comment on the re-examination report. Their lawsuit also alleges that the adoption of the re-examination report was arbitrary, capricious and unreasonable because the board did not have time to review and understand the report.

The family also believes that in its decision to rezone the R/AG-400 zone, the borough neglected to discuss ordinance 97-31, current zoning requirements for the zone, the historical impact of the R/AG-400 zone, the ordinance's effect on the preservation goals of the master plan, the ordinance's environmental impact, whether or not the zone has sufficient infrastructure, or if the ordinance advanced any purpose of the MLUL.

The lawsuit also alleges that the ordinance was reviewed and approved by the borough and the board based on inaccurate and false purposes because the borough does not have to provide for the exercise of religion within its development regulations in a manner that will provide for the development of new religious facilities, associated private schools and protection of the R-40 district.

"None of these reasons are valid exercises in advancing a purpose of zoning set forth in the MLUL," Butler wrote in the lawsuit.

The lawsuit states that the Carduners were entitled to due process prior to the adoption of the zoning regulation that affects their property and that the borough violated their due process rights prior to the adoption of the ordinance.

The plaintiffs are demanding a trial by jury and are asking the Superior Court of Monmouth County to deem ordinance 97-36 illegal and void. The family is also seeking counsel fees and costs and other relief as the court deems reasonable.

When a reporter for the Examiner called Butler for comment on the lawsuit, his secretary said that he was working on a trial during the week of July 23 and would be on vacation during the week of July 30, and would not be able to respond to questions regarding the lawsuit until after his vacation.