Farmer v. Meeker

• Court: New Jersey Superior Court
• Writing for the Court: HALPERN
• Citation: Farmer v. Meeker, 63 N.J.Super. 56, 163 A.2d 729 (N.J. Super. 1960)
• Decision Date: 15 September 1960
• Docket Number: No. L--4576--59,L--4576--59
• Parties: William FARMER, Plaintiff, v. David M. MEEKER, Mayor, and Committeemen William G. Badgley, Warren M. Craft, Jr., Percy R. Pyne, 111, and Loyal H. Robinson, constituting the Township Committee of the Township of Bernards, a municipal corporation of the State of New Jersey, and Vincent L. Back, William G. Badgley, Arthur Lange, Albert R. Mayo, David M. Meeker, H. Murphy, Jack R. Niedner, H. H. Ortman and J. D. Welch, constituting the Planning Board of the Township of Bernards, Defendants.

Page 56

63 N.J.Super. 56

163 A.2d 729

William FARMER, Plaintiff, v. David M. MEEKER, Mayor, and Committeemen William G. Badgley Warren M. Craft, Jr., Percy R. Pyne, 111, and Loyal H Robinson, constituting the Township Committee of the Township of Bernards, a municipal corporation of the State of New Jersey, and Vincent L. Back, William G. Badgley Arthur Lange, Albert R. Mayo, David M. Meeker, H. Murphy Jack R. Niedner, H. H. Ortman and J. D. Welch, constituting the Planning Board of the Township of Bernards, Defendants.

No. L--4576--59.

Superior Court of New Jersey Law Division.

Sept. 15, 1960.

Consodine, Callahan & Farley, Newark (George H. Callahan, Newark, appearing), for plaintiff.

Anthony P. Kearns, Newark, for defendants.

HALPERN, J.C.C. (temporarily assigned).

This is an action in lieu of prerogative writs challenging the validity of Bernards Township Ordinance No. 77, an amendment to the zoning ordinance, which created a 'Residence 20-Parking' zone. The amendment affected only four properties located adjacent to the township's business district in Basking Ridge.

At the request of both counsel, I inspected the area with them in order to better understand the testimony and the many exhibits in evidence.

Bernards Township, encompassing an area of approximately 23.5 square miles in the northern section of Somerset County, is composed almost entirely of residences and farms. And township's zoning ordinance provides for three small business zones, at Lyons, at Liberty Corner, and at Basking Ridge. The one at Basking Ridge is the largest and consists of a strip on both sides of South Finley Avenue (its main thoroughfare) for a distance of two blocks between Lewis and Oak Streets, bisected by Henry Street. Approximately one-half of the land zoned for business is actually used for that purpose, the remainder being occupied by church properties and residences.

South Finley Avenue runs in a generally north-south direction. Ordinance No. 77 deals only with the area on its west side, where the business zone is a strip approximately 280 feet in depth, with most of the South Finley Avenue lots extending the full distance. Henry Street runs west from South Finley Avenue some 500 feet, where it makes a full left turn and becomes Rankin Avenue. In this area, south of Henry Street, a row of residential lots behind the business zone fronts on Rankin Avenue.

North of Henry Street, the rear of the business lots borders directly on a narrow one-way street called Brownlee Place. Brownlee Place meets Henry Street in a 'T' intersection at a point approximately midway between South Finley Avenue and Rankin Avenue. The three properties on the west side of Brownless Place, across the street from the rear of the business zone, were classified residential until rezoned by the challenged amendment to add parking as a permitted use. Further west, behind these Brownlee Place properties, is a tract of approximately 12 acres on which a public school is situated, with access from other streets not pertinent here.

The Somerset Hills National Bank, hereinafter referred to as the bank, is located on the southwest corner of South Finley Avenue and Henry Street, facing South Finley Avenue. The bank, through a wholly-owned subsidiary, the Someridge Corporation, owns a tract shaped like a reversed 'L' with approximately 195 feet of frontage on South Finley Avenue and extending back the full distance along the south side of Henry Street to Rankin Avenue. Although this tract is designated as one lot on the township's tax map, it is better described as two lots on South Finley Avenue and one on Rankin Avenue, with Henry Street running along the northerly sides of the Rankin Avenue lot and the most northerly Finley Avenue lot. The building, occupied by the bank and a federal postoffice, is located on a relatively small portion of the tract, the remainder of which is vacant except for a gravel parking lot adjacent to the building.

The bank, through Someridge, has for several years contemplated erecting stores on vacant portions of the tract, as shown by drawings submitted to the township in various earlier rpoceedings and now part of the evidence in the instant case. The fact that the bank's Rankin Avenue lot has been in a residential zone has thus far thwarted execution of these plans. Parts of the zoning ordinance require that specified numbers of off-street automobile parking spaces be furnished for any new business buildings, and the only apparent way for the bank to utilize a maximum area of its two business lots for the proposed stores is to employ the adjoining residential lot for parking, a use previously rohibited there. This lot is the fourth property covered by the challenged amendment, so the new 'Residence 20-Parking' zone is essentially a strip which extends along the west side of Brownlee Place and then crosses Henry Street to take in the first lot on Rankin Avenue, owned by the bank.

Plaintiff, the owner of a residence on Rankin Avenue some 350 feet from the rezoned tract, has the necessary status to bring this suit. Speakman v. Mayor and Council of North Plainfield, 8 N.J. 250, 84 A.2d 715 (1951).

Plaintiff's first ground for attacking the amendment is that it was not validly adopted in compliance with R.S. 40:55--35, as amended by L.1948, c. 305, N.J.S.A., which provides in part:

'* * * In case of a protest against such proposed changed signed by the owners of twenty per centum (20%) or more * * * of the area of the lots or land included in such proposed change, * * * such change shall not become effective except by the favorable vote of two-thirds of all the members of the governing body * * * of such municipality.'

At the public hearing on the amendment two separate petitions were filed with the township committee. The first, which directly opposed the amendment, was signed by owners of residential properties on Rankin Avenue and in other nearby neighborhoods. The second, with which we are primarily concerned, was instituted by a group of store owners on South Finley Avenue and was signed by all three owners of the involved Brownlee Place properties which, the township concedes, total much more than the statutory 20 per cent of the affected area. It will be helpful to quote this petition in full:

'We, the undersigned, for the reasons expressed below respectfully request the members of the Bernards Township Committee to reconsider their actions in proposing Bernards Township Ordinance #77 so that the present properties located on the Westerly side of Brownlee Place, located between the Southerly sideline of West Oak Street and Northerly sideline of West Henry Street, Basking Ridge, New Jersey, shall be rezoned for business use and that such other property as is outlined in the present draft of Ordinance #77 shall be zoned for parking in accordance with the purposes outlined in the present draft of that Ordinance.

'The property located on the Westerly side of Brownlee Place between West Oak Street and West Henry Street is directly across from a presently undeveloped business zone in Basking Ridge.

'This property is bordered by the Township Hall on the Northerly side, by the Public School on the West, by the bank property on the South and by all business property on the East. With the present location and boundaries of this property, Brownlee Place can never be properly developed. Because of a conflict of purposes we feel that good business locations and desirable residential sites rarely situate themselves on opposite sides of the street.

'For the above reasons, we strongly urge the Bernards Township Committee to rezone this area as is set forth above.'

The vote of the five-member township committee by which the amendment was declared adopted was three in favor, one opposed, and one abstaining. This is admittedly less than the two-thirds vote required by the statute in the event of a protest. The township argues, however, that the quoted petition does not constitute a 'protest' and, therefore, a bare majority vote was sufficient. The township's argument rests upon three aspects of the petition--its phraseology; the fact that, rather than being a negative attack on the proposal, it seeks an alternative positive action; and that it specifically approves the proposal as it relates to one of the four affected properties.

The statute provides no definition or form for a 'protest,' and no decision has been cited by counsel or found by the court construing this term in the statute.

The word 'protest' is defined in Webster's New International Dictionary (2d ed., 1958) as 'a protesting or remonstrating; expostulation; complaint; also, an objection or remonstrance.' The synonym 'objection' is defined as 'that which is, or may be, presented in opposition; an adverse reason or argument; a reason for objecting or opposing; also, a feeling of disapproval; * * *.'

The fact that the petitioners, out of humility, have couched their plea in respectful terms beseeching the officials to 'reconsider' and proposal does not make their petition any less a 'protest' than if it had been actually labeled as such. The term must be given a liberal construction to arrive at the intent of the protestants and the purpose of the document. I conclude that, on its face, the petition constitutes a declaration of disapproval of the proposed action of the township committee in rezoning the Brownlee Place properties. It clearly presents adverse reasons or argument and, thus, serves as an 'objection' or 'protest.'

While petitioners seek a different disposition of their properties rather than retention of the Status quo, neither the statute nor logic requires that the 'protest' be completely negative in nature. In the absence of express assertions to the contrary, the urging of an alternative necessarily implies disapproval of the plan as proposed. Furthermore, in this particular situation, it is clear that the underlying motive of the...