256 A.2d 85 (N.J.Super.Ch. 1969), Smith v. Livingston Tp.

Citation:256 A.2d 85, 106 N.J.Super. 444
Opinion Judge:[10] Mintz
Party Name:Lawrence SMITH, Herman Ziegler, Irwin Klepper, Marvin Weinberger and Paul Goldman, Plaintiffs, v. The TOWNSHIP OF LIVINGSTON, a municipal corporation of the State of NewJersey, The Planning Board of the Township of Livingston, the BuildingInspector of the Township of Livingston, N. K. Winston Corporation, acorporation of the State of NewYork, and L
Attorney:[6] Mr. Clive S. Cummis for plaintiffs (Messrs. Cummis, Kent & Radin, attorneys).
Case Date:July 31, 1969
Court:Superior Court of New Jersey
 
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256 A.2d 85 (N.J.Super.Ch. 1969)

106 N.J.Super. 444

Lawrence SMITH, Herman Ziegler, Irwin Klepper, Marvin Weinberger and Paul Goldman, Plaintiffs,

v.

The TOWNSHIP OF LIVINGSTON, a municipal corporation of the State of NewJersey, The Planning Board of the Township of Livingston, the BuildingInspector of the Township of Livingston, N. K. Winston Corporation, acorporation of the State of NewYork, and Livingston Properties Corp., a corporation of the State of NewJersey, Defendants.

Superior Court of New Jersey, Chancery Division.

July 31, 1969

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[106 N.J.Super. 447] Clive S. Cummis, Newark, for plaintiffs (Cummis, Kent & Radin, Newark, attorneys).

Louis Bort, Livingston, for defendants Township of Livingston and municipal bodies.

Theodore L. Abeles, Newark, for defendants Livingston Properties Corp. and N. K. Winston Corp. (Lum, Biunno & Tompkins, Newark, attorneys).

MINTZ, J.S.C.

Defendants N. K. Winston Corporation and Livingston Properties Corp. move for summary judgment on their second counterclaim, third counterclaim and cross-claim. Summary judgment is not sought on the cross-claim to the extent that it incorporates the first counterclaim.

The complaint alleges the following facts. Plaintiffs are property owners and residents in Livingston Township, Essex County. Defendant N. K. Winston Corporation is the proposed developer of a tract of about 58 acres for a shopping center on property owned by defendant Livingston Properties Corp. situate at the intersection of South Orange Avenue and Walnut Street in Livingston Township. On January 27, 1969 plaintiffs and others filed an initiative petition with the township clerk whereby it is proposed that the governing body of the township adopt an ordinance amending the present zoning ordinance so that the designation of the zone in which the aforesaid property is located would be changed from 'D--S' Designed Shopping Center District to 'R--L' Office Building and Research Laboratory District.

The initiative petition filed with the township clerk contains 2340 purported signatures. After checking 1400 signatures, the township clerk certified the ordinance proposed in the petition to the town council since it contained the genuine signatures of qualified voters in excess of 15% Of the [106 N.J.Super. 448] valid votes cast in the township at the last preceding election for members of the General Assembly. Plaintiffs assert that pursuant to N.J.S.A. 40:69A--191 and 192 they are entitled to have their proposed

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ordinance passed upon at the next general election.

The complaint also alleges that defendants N. K. Winston Corporation and Livingston Properties Corp. applied to the Livingston Planning Board for approval of their site development plans for the proposed shopping center after the filing of the initiative petition. It is charged that these defendants seek to acquire vested rights before the voters have an opportunity to consider the proposed ordinance. Plaintiffs seek to enjoin the planning board from approving the site plan, and defendants, N. K. Winston Corporation and Livingston Properties Corp. from initiating any work on the contemplated project until the next election.

Under the first zoning ordinance passed by the township in 1948 the subject property was zoned as a retail business district. In 1957 it was rezoned as a designed shopping center district and in 1959 again rezoned as an office building and research laboratory district. In 1962 the present sections 8.106--8.109 of the Livingston zoning ordinance providing for the 'D--S' Designed Shopping Center District were adopted, and the property in question was so zoned. Certain property owners instituted an action in lieu of prerogative writs challenging the validity of this amendment. Judge Labrecque concluded in an option dated December 27, 1963 that the zoning of the area as a designed shopping center district was in accordance with a comprehensive plan designed to promote the general welfare of the township.

Concededly, Livingston Township operates under the Faulkner Act (N.J.S.A. 40:69A--1 et seq.) and is subject to the statutory provisions pertaining to initiative and referendum. N.J.S.A. 40:69A--184 and 185. Defendants N. K. Winston Corporation and Livingston Properties Corp., seeking an adjudication that the plaintiffs' initiative petition [106 N.J.Super. 449] be declared a nullity, predicate their motion for summary judgment on the following grounds:

  1. The number of signatures on plaintiffs' petition is insufficient to meet the requirements of the Faulkner Act N.J.S.A. 40:69A--184 and 185), unless reliance is placed on the special exception for municipalities in certain counties of the first class added by the Legislature in 1951. This special exception is unconstitutional under the Fourteenth Amendment of the Federal Constitution and Articles I and IV of the New Jersey Constitution because it is discriminatory special legislation without legal or factual justification;

  2. The initiative and referendum provisions of the Faulkner Act are inapplicable to zoning ordinances, which can only be amended in the manner provided in the Zoning Act (N.J.S.A. 40:55--30 et seq.) and further, that failure to so hold would subject these defendants to a deprivation of due process; and

  3. Because the ordinance proposed in the petition would repeal the 1962 ordinance creating the 'D--s' Designed Shopping Center District and revert the zoning of the property in question to that in effect immediately prior to the adoption of such ordinance, the petition is, in reality, a petition for a referendum on the 1962 ordinance and not an initiative petition. As a petition for a referendum, it is over six years too late, since such petition must be filed within 20 days after final passage and approval of the ordinance in question (N.J.S.A. 40:69A--185).

Initially it may be observed that the effect of the proposed ordinance, if approved in the November election, will be to reinstate the zone to that in effect immediately prior to the adoption of the 1962 ordinance. Such procedure is properly designated as an initiative under N.J.S.A. 40:69A--184, which does not prescribe any time limit within which such an ordinance may be proposed by the voters and adopted at the polls.

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Under N.J.S.A. 40:69A--185 the voters also have the power of referendum, which is the power to approve [106 N.J.Super. 450] or reject at the polls any ordinance passed by the council against which a referendum petition has been filed. If, within 20 days after final passage and approval of an ordinance, a petition protesting the passing of such ordinance is filed with the municipal clerk bearing the required number of signatures as therein provided, the ordinance is suspended from taking effect until proceedings are had as provided for in the subsequent sections of the statute. However, the fact that the voters have not exercised their power of referendum within the 20-day period which necessarily suspends the ordinance from taking effect does not preclude the voters at a later date from proposing an ordinance covering the same subject matter by way of initiative. Section 184 of the Faulkner Act does not limit the power of initiative to only those areas of municipal concern which have never been the subject of favorable council action. When there is either a change in the circumstances or in the will of the people, it may be highly desirable to amend a longstanding ordinance. In such a case, when the governing body fails to act, the initiative procedure provided for by section 184 is available to the voters. Hence, I find no merit in the argument that plaintiffs' petition is in effect one for a referendum and is out of time.

The present Zoning Act, N.J.S.A. 40:55--30 et seq., was enacted in 1948. N.J.S.A. 40:50--35 provides in part that:

'* * * no amendment or change shall become effective unless the ordinance proposing such amendment or change shalll first have been submitted to the planning board, when such board exists, for approval, disapproval or suggestions, and the planning board shall have a reasonable time, not less than thirty days, for consideration and report, and in the case of an unfavorable report by the planning board such amendment shall not become effective except by a favorable vote of two-thirds of the governing body.'

Under the initiative provision of the Faulkner Act, N.J.S.A. 40:69A--184 the voters may propose 'any ordinance and may adopt or reject the same at the polls, such power being known as the initiative.' The cited statutory provisions [106 N.J.Super. 451] are in conflict and the resolution of this case depends upon a determination as to which statute is controlling.

In Meridian Development Co. v. Edison Tp., 91 N.J.Super. 310, 220 A.2d 121 (LawDiv.1966), the court stated that the initiative and referendum procedure is one of the cornerstones of the fundamental Faulkner Act...

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