Brundage v. Randolph Tp.

• Decision Date: 09 March 1959
• Docket Number: No. A--19,A--19
• Citation: 54 N.J.Super. 384,148 A.2d 841
• Parties: , 96 A.L.R.2d 1400 Charles E. BRUNDAGE and Edna T. Brundage, Plaintiffs-Appellants, v. TOWNSHIP OF RANDOLPH, a municipal corporation of the State of New Jersey; Frank Thorburn, Building Inspector of the Township of Randolph; and Planning Board of the Township of Randolph, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 384

54 N.J.Super. 384

148 A.2d 841, 96 A.L.R.2d 1400

Charles E. BRUNDAGE and Edna T. Brundage, Plaintiffs-Appellants, v. TOWNSHIP OF RANDOLPH, a municipal corporation of the State of New Jersey; Frank Thorburn, Building Inspector of the Township of Randolph; and Planning Board of the Township of Randolph, Defendants-Respondents.

No. A--19.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 16, 1959.

Decided March 9, 1959.

Milton A. Dauber, Jersey City, argued the cause for plaintiffs-appellants (Carpenter, Bennett & Morrissey, Jersey City, attorneys; Thomas L. Morrissey, Jersey City, of counsel; Thomas L. Morrissey and Milton A. Dauber, on the brief).

Harry L. Sears, Boonton, argued the cause fordefendants-respondents (Young & Sears, Boonton, attorneys; Harry L. Sears, Boonton, on the brief).

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

FREUND, J.A.D.

The validity of two zoning ordinances enacted by Randolph Township, Morris County, during 1957 was challenged in this action in lieu of prerogative writs brought in the Superior Court, Law Division. Plaintiffs, taxpayers and property owners of the township, appeal from the judgment of that court dismissing the original and amended complaints. Defendants are the municipality, its building inspector, and the planning board.

I.

Randolph Township is an essentially rural and relatively sparsely settled area in the highlands of central Morris County. It consists of about 22 square miles in which live an estimated 7,000 to 8,000 persons. Since 1950 the population has virtually doubled. The township is primarily residential, and there has been a development of homes in all its sections. While commercial and industrial development is presently minimal, residential growth is expected to continue. Mount Freedom, located in the south central part, is the township's principal village.

One commercial activity, which has a considerable effect on its economy and zoning problems and which distinguishes the township from its neighbors, is the prosperous and long-standing summer resort industry, located principally in the Mount Freedom area. In addition to 9 or 10 hotels, there are 40 or 50 bungalow colonies, each consisting of from 4 or 5 to as many as 40 or 50 small buildings under common ownership, designed for rental on a seasonal basis to families for summer housekeeping use. With the hotels, these colonies attract over 3,000 people to the community during the summer months. The bungalows contain two, three or four rooms; some accommodate two families, but most only one. The owners provide recreation buildings, swimming pools, playfields, day camps, and the like. As the trial judge, who in the course of the trial inspected the entire township, said in his opinion,

'* * * living is essentially outdoors. * * * (T)he basic commodity sold is fresh air at a high elevation. The installations are generally quite close together and many are on quite small lots.

They range from one extreme to the other in quality. With few exceptions, the bungalows are not designed in any way for living except during the warm summer months. Their origin long antedates the first zoning ordinance in 1938. It should be noted that in Mount Freedom these resort uses are all interspersed among a good number of single family dwellings and retail business establishments.'

The first zoning ordinance was enacted in 1938. The bungalows in the Mount Freedom area were located in what was made the business zone. By a major amendment adopted in 1952, three classes of residence zones and two classes of business zones (neighborhood and general) were established. While the general business zone included 'hotels' and 'other business uses which serve the general public,' the apparent effect of the 1952 amendment was to make bungalow colonies a nonconforming use, not permitted in the residential zones and at least not expressly permitted in the general business zone. It appears that most of the colonies (aside from those in the Mount Freedom area) are now in zones which were fixed as residential under the 1938 ordinance or which became residential prior to 1957. Some of the bungalow colonies were established prior to 1938 and are therefore lawful nonconforming uses. Those which have begun operations since 1938, however, were, under the then-existing ordinances, illegal in their inception. In short, prior to 1957 there was no ordinance authorizing a bungalow colony as such.

On February 7, 1957 an amendatory zoning ordinance, approved beforehand by the planning board, was adopted by the township committee, the legislative body of the municipality. In pertinent part, this ordinance created a B--3 resort zone in four separate areas where bungalow colony uses would be permitted. The principal B--3 zone was in and about the Village of Mount Freedom. The other three were widely separated, individual tracts. Two of these, respectively located at the northeasterly and westerly portions of the township, are not presently under attack. The remaining one, consisting of the property of one Nathan Kaufman, is attacked by plaintiffs as illegal spot zoning. The 'Kaufman zone' is, in effect, an island surrounded by a large area zoned for and presently developing along the lines of one-family residential use. It is approximately one-half to one mile to the north of the central part of the larger Mount Freedom B--3 resort zone. The February 1957 ordinance merely established the areas in which bungalow colony expansion was to be permitted, but did not establish use regulations. On November 14, 1957 the township committee adopted another ordinance, also under attack here, setting forth use regulations and various lot-size, depth, yard, height, and living-space requirements for the resort zones.

II.

Plaintiffs instituted this action on the general theory that the 1957 ordinances were not in harmony with the proper objectives of municipal zoning as set forth in R.S. 40:55--32, N.J.S.A. Plaintiffs contended that the creation of scattered resort zones was done to accommodate special private interests at the expense of depreciating existing property values, and that it interfered with the most appropriate use of those areas as residential property. After hearing oral testimony for eight days and examining a voluminous record of exhibits consisting of maps, photographs, minutes of official bodies, reports, and pamphlets, the trial judge rendered an opinion disposing of many subsidiary points involved in this litigation and, on the basic issues, concluding in the main that the zoning ordinances in question were reasonably designed to further the advancement of the community as a social, economic and political unit.

Plaintiffs argue that the judgment sustaining the ordinances must be reversed for four main reasons: (1) the Kaufman resort tract is an illegal spot zone; (2) the bungalow use regulations contained in the November 1957 ordinance are invalid; (3) section V(G) reguiring planning board approval for bungalow plots is void for lack of standards, and partial invalidity renders invalid the entire November ordinance; and (4) the zoning in the Shongum Lake and Sussex Ridge areas, reducing the planning board's recommended minimum residential lot-size requirements from one acre and one-half acre to one-half acre and one-third acre, respectively, is void for want of compliance with N.J.S.A. 40:55--35. The necessary factual material will be recited in our consideration of each point.

III.

Plaintiffs launch a threefold attack upon the February 1957 ordinance insofar as it zoned the Kaufman tract as an area within which bungalow colonies would be permitted. They claim that the carving out of the Kaufman island for resort use, when surrounded by land zoned for residential use, is not zoning 'in accordance with a comprehensive plan' as required by R.S. 40:55--32, N.J.S.A., but rather spot zoning actuated by an unwillingness on the part of local officials personally to incur Mr. Kaufman's displeasure. Secondly, it is argued that the Kaufman tract is unattractive and will depreciate property values in the surrounding residential areas. Finally, plaintiffs reason from such cases as Speakman v. Borough of North Plainfield, 8 N.J. 250, 84 A.2d 715 (1951), and Borough of Cresskill v. Borough of Dumont, 15 N.J. 238, 104 A.2d 441 (1954), that the ordinance, insofar as it validates a specific illegal nonconforming use located upon a single tract of land, must fail since it in effect grants either a variance, the power to authorize which rests with the local legislative body on recommendation from the board of adjustment (not from the planning board as here), or an exception, which is also to be approved by the board of adjustment in authorized instances. See N.J.S.A. 40:55--39; Rain or Shine Box Lunch Co. v. Board of Adjustment, Newark, 53 N.J.Super. 252, 258--259, 147 A.2d 67 (App.Div.1958); Borough of North Plainfield v. Perone, 54 N.J.Super. 1, 8, 148 A.2d 50 (App.Div.1959). Randolph Township has a board of adjustment.

The trial judge ruled as to the first facet of this argument: '(T)he municipality, having determined within its province to legalize for zoning purposes, so to speak, the industry, is bound to recognize the actual use and extent thereof at the time of enactment as far as zone area is concerned. That comports with one of the requirements of R.S. 40:55--32 (N.J.S.A.) that 'regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses.' To create zones for this use leaving out substantial parts of the actual use would open such an enactment to a charge of unlawful discrimination.'

We find this ruling, as well as what we said in Bartlett v. Township of Middletown, 51 N.J.Super. 239, 143 A.2d 778 (App.Div.), certification denied 28 N.J. 37, 144 A.2d 907 (1958), a complete...