Fischer v. Bedminster Tp.

CourtUnited States State Supreme Court (New Jersey)
Citation11 N.J. 194,93 A.2d 378
Docket NumberNo. A--65,A--65
Decision Date22 December 1952

Edward Sachar, Plainfield, for appellant.

T. Girard Wharton, Somerville, for respondent (Leon Gerofsky and Wharton, Hall, Stewart & Halpern, Somerville, attorneys; William T. Stewart, Jr., Somerville, on the brief).

The opinion of the court was delivered by


The plaintiff's attack on the zoning ordinance of the defendant township resulted in a judgment in favor of the township. The plaintiff appealed to the Appellate Division of the Superior Court, 21 N.J.Super. 81, 90 A.2d 757, and we have brought the matter here on our own certification.

To understand the controversy it is essential to get a clear picture of the defendant township which was founded by royal charter in 1749. While it has an area of 26 square miles and is therefore more extensive than Newark, the largest city in the State, with its 23.57 square miles, it has a population of only 1,613 in comparison with Newark's 437,857. It is distinctly a rural community with no industry, light or heavy, and with little commercial activity, it being stipulated in the pretrial order that 'for most items, the residents shop outside the township.' There are four 'villages' within the township, Pluckemin, Pottersville, Lamington and Bedminster village, and curiously enough the language used in Gordon's Gazetteer of New Jersey to describe the township and its villages in 1834 is largely applicable 118 years later. Thus the township is characterized as 'hilly,' as distinguished from 'level' Bridgewarter to the southeast and from 'mountainous' Bernards to the northeast; its population in 1830 was 1,453; Gazetteer 240. By turning the pages of the Gazetteer one may find scores, if not hundreds, of other communities within a relatively few miles of the metropolis in which there has been no appreciable growth in 120 years, due generally to the lack of adequate railroad transportation, Lane, From Indian Trail to Iron Horse (Princeton, 1939) passim. The soil is described in the Gazetteer as 'lime, clay, and red slate, generally well cultivated and fertile,' p. 98. Pluckemin is characterized as containing '1 tavern, 2 stores and from 25 to 30 dwellings,' p. 218; Pottersville, 'a tavern, store and a few dwellings,' p. 220; Lamington, 'a Presbyterian church, a tavern and 3 or 4 dwellings, situate in a pleasant fertile country,' p. 167--all of them not too inaccurate descriptions today.

The pretrial order stipulates that the township consists of 'rolling countryside divided into a naturally wooded area, farms and country establishments,' that there are 457 families in the township, four churches, five cemeteries, three elementary schools (high school students going to Bernardsville), three post offices (some residents being served by post offices outside the township or by rural delivery from Somerville, the county seat), 55.3 miles of road (6.5 miles of state highways, 12 miles of county roads and 36.8 miles of municipal roads, of which 28.8 are unimproved stone and dirt roads), and 25 businesses, consisting of four grocery stores, four gas stations, three garages, two general stores, two saddle and harness stores, two inns, two real estate offices, an undertaker's establishment, a plumber's shop, a toy train store, a gift shop, an upholstery shop, and a custom farming and trucking establishment. The township has one full-time police officer and several part-time special officers, but no fire department of its own, contributing to the Union House Company of Far Hills. Only a relatively small part of the township has a public water supply system. There is no public sewerage system. Sewage disposal presents a problem because of the large amount of shale in the soil which hampers drainage. A site for a sewage disposal plant has been acquired by the township in Bedminster Center. There is no public transportation system in the township, railroad transportation being provided from Far Hills to the east of the township or from Somerville to the south. In short, the township, although only 40 miles from New York, is as essentially rural as if it were 400 miles away, as its population of 62 per square mile demonstrates.

The surrounding municipalities are all likewise rural in character. To the north lies the township of Chester in Morris County with 27.7 square miles and a population of 1,298; and to the east the borough of Peapack and Gladstone with 5.4 square miles and a population of 1,459, the township of Bernards with 24.3 square miles and a population of 7,472, and the borough of Far Hills with 4.9 square miles and a population of 574; to the southeast the township of Bridgewater with 32.7 square miles with a population of 8,253 (with a large area devoted to industry on its southern border remote from Bedminster); to the southwest the township of Branchburg with 20.4 square miles and a population of 1,955, and to the west the township of Readington in Hunterdon County with 26.5 square miles and a population of 4,075, and the township of Tewksbury in Hunterdon County with 17.5 square miles and a population of 1,451.

In 1946, following a report of its zoning commission and the holding of public hearings, the township adopted a zoning ordinance dividing the township into three zones: an 'A' residence zone in which no residence may be constructed upon a plot less than one-half acre; a 'B' residence zone in which no residence may be constructed upon a plot of less than five acres; and a business zone. At the time of the adoption of the ordinance the average size of each parcel of land in the 'A' residence zone was about 10 1/2 acres; the average size of each parcel in the 'B' residence zone about 104 acres. About 3 1/2 square miles were included in the 'A' zone and approximately 22 square miles in the 'B' zone, the business zone being located in areas within the 'A' zone.

At the time the zoning ordinance was adopted the plaintiff's mother, Emilie B. Fischer, owned a tract of about 24 acres in the township, about half of which was in the 'A' zone and half in the 'B' zone. The plaintiff owned no property in the township at the time of the adoption of the ordinance, but almost three years thereafter, in September 1949, his mother conveyed to him about five-eighths of an acre of vacant and unimproved land located on an improved black-top road in that portion of her property which was in the 'B' or five-acre zone. Immediately after the conveyance the plaintiff instituted this action challenging the validity of the ordinance. The township moved for summary judgment and a dismissal of the complaint on jurisdictional grounds, contending that the plaintiff was barred by his failure to institute proceedings in lieu of a prerogative writ within the time prescribed by R.S. 2:80--7, N.J.S.A. This motion was denied by the trial court and affirmed on appeal by the Supreme Court, on the ground that the statute was unconstitutional, Fischer v. Township of Bedminster, 5 N.J. 534, 76 A.2d 673 (1950). At the trial following the remand from the Supreme Court the trial court held that the challenged parts of the ordinance were valid, and this appeal questions its judgment dismissing the complaint.

The plaintiff's primary contention here is that the provisions of Article VII of the zoning ordinance are arbitrary and unreasonable, depriving him of the use of his property without just compensation and without due process of law contrary to the requirements of the Constitutions of the United States and of this State, in that no building shall be constructed, reconstructed, or altered in the 'B' residential zone on a plot with an area of less than five acres or a width of less than 200 feet, or so as to be nearer than 100 feet to the line of any street on which the plot may abut or front. Although the plaintiff thus stated his point broadly to cover the 200-feet and 100-feet provisions of Article VII of the zoning ordinance, nowhere in his brief does he discuss these points nor did he mention them at the oral argument. His attack was confined to the five-acre provision of Article VII, and that part only of the ordinance will therefore be considered. The defendant on the other hand, contends that even this issue is not properly before us in that the plaintiff did not question the constitutionality of the five-acre requirement in the 'B' residence zone in his complaint nor did he do so in the 'more definite statement' of his claim required by court order on the defendant's motion. There he alleges that he is injured by the fact that his tract of five-eighths of an acre carved out of his mother's 24-acre tract has been put in the 'B' or five-acre residence zone instead of in the 'A' or one-half-acre zone. The defendant contends that in the pretrial order the issue is limited to the unconstitutionality of the provisions of the ordinance 'insofar as they restrict the use of the plaintiff's property.' At the trial there was no dispute concerning the five-acre requirement, but only as to the propriety of putting the plaintiff's five-eighths of an acre piece of property in the 'B' or five acre zone. Furthermore, the plaintiff's witnesses joined the defendant's in testifying as to the reasonableness of having a five-acre zone in a community such as Bedminster. Indeed, Mr. Scott Bagby, the plaintiff's zoning consultant, testified that he would have reduced the 3 1/2 square miles of the 'A' or one-half acre zone to 940 acres, or less than half of what was set aside for that zone in the ordinance, and he would 'raise the five acre zone to a ten acre zone because of the extremely open character of this area.' But the question of the constitutionality of the five-acre requirement was dealt with by the trial court in deciding the narrower issue before it; it has been fully briefed and argued here by both sides; and, involving as it does...

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