Johnson v. Montville Tp.

Citation109 N.J.Super. 511,264 A.2d 75
PartiesJames J. JOHNSON and Mary B. Johnson, his wife, and Curtis Decker and Theresa Decker, his wife, Plaintiffs-Appellants, v. TOWNSHIP OF MONTVILLE, a municipal corporation of New Jersey, Defendant-Respondent.
Decision Date09 April 1970
CourtNew Jersey Superior Court – Appellate Division

Jeffrey R. Lowe, Trenton, for plaintiffs-appellants.

Harry L. Sears, Boonton, for defendant-respondent (Young & Sears, Boonton, attorneys, Lawrence K. Eismeier, Boonton, on the brief).


The opinion of the court was delivered by


Plaintiffs challenge a judgment of the Law Division affirming the validity of an amendment to the zoning ordinance of the Township of Montville rezoning a tract of approximately 450 acres in that municipality from an A--3 residential zone to a D--3 industrial zone. They raise three points: (1) passage of the amendatory ordinance was by less than the two-thirds vote of the township committee required by N.J.S.A. 40:55--35; (2) the rezoning of the subject property was not in accordance with a comprehensive plan, and (3) it was unreasonable, arbitrary and capricious. N.J.S.A. 40:55--35 provides, in pertinent part, as follows:

In case of a protest against such proposed change signed by the owners of twenty per centum (20%) or more either of the area of the lots or land included in such proposed change, or of the lots or land in the rear thereof extending one hundred feet therefrom, or of the lots or land on either side thereof or directly opposite thereto extending one hundred feet therefrom (exclusive of street space), such change shall not become effective except by the favorable vote of two-thirds of all the members of the governing body or board of public works of such municipality.

The amendatory ordinance was passed by a vote of 3 to 1 with one member of the governing body abstaining.

The proposed industrial zone is located between the Rockaway River, which borders Montville on the west, and Change Bridge Road on the east. John Henry Drive and Van Riper Avenue, are two parallel streets serving a small A--3 residential area, extending into the new industrial zone in a generally westerly direction from Change Bridge Road. At the time the amendatory ordinance was up for consideration by the township committee a group of owners of property on John Henry Drive and Van Riper Avenue, including plaintiffs herein, filed a protest against its passage.

The manner in which plaintiffs arrive at the conclusion that a two-thirds vote of the governing body was necessary to passage of the amendatory ordinance is summarized in their factual and legal contentions contained in the pretrial order, as follows:

The plaintiffs contend that the north side of Van Riper Avenue and the south side of John Henry Drive, each constitute the rear or a side of the rezoned area within the purview of the statute and that if 20% Of the lot owners or owners of 20% By area of all the lots on the north side of Van Riper Avenue or the south side of John Henry Drive, signed the petition, a 2/3's vote was required.

They assert (and it is not disputed) that four of the ten lot owners on the north side of Van Riper Avenue and six of the twelve lot owners on the south side of John Henry Drive signed the protest petition. They contend that this amounts to a protest by the owners of more than 20% Of the lots or land in the rear or on a side of the new D--3 zone.

The core issue presented by plaintiffs' foregoing contention is whether each of the sides of this residential area which projects into the proposed industrial zone and adjoins it, amounts to a 'rear' or 'side' of the rezoned area within the purview of the statute. It appears from the zoning map that projecting into the proposed industrial zone, but not included therein, there are four additional nonindustrial areas. Under the interpretation advanced by plaintiffs, if the owners of 20% Of the property on any side of any one of these areas adjoining the new zone had filed a protest, a two-thirds vote would have been necessary to passage of the proposed rezoning.

Counsel cites no New Jersey case which had directly passed upon the issue and we know of none. The protest provisions of the zoning statutes of other states take varing forms, so that we find no case directly dispositive. See Annotation, 4 A.L.R.2d 335 (1949); 1 Rathkopf, The Law of Zoning and Planning, c. 28, p. 28--1 et seq. (3d ed. 1969).

It appears clear, however, that the purpose of a provision requiring a greater than ordinary vote for a change of the zoning classification upon the filing of protests is to confer a measure of added protection against unwanted or ill-considered change upon those property owners who would be most affected by it. Farmer v. Meeker, 63 N.J.Super. 56, 64, 163 A.2d 729 (Law Div.1960); Warren v. Borawski, 130 Conn. 676, 37 A.2d 364, 366 (Sup.Ct.Err.1944). Thus, in computing the protest area to which the statute refers, it is to be measured by the area affected by the change. Rusnak v. Woodbridge Tp., 69 N.J.Super. 309, 314, 174 A.2d 276 (Law Div.1961). See also Durrwachter v. Fair Lawn, 136 N.J.L. 314, 315, 55 A.2d 832 (Sup.Ct.1947); Morrill Realty Corporation v. Rayon Holding Corporation, 254 N.Y. 268, 172 N.E. 494 (Ct.App.1930).

Rusnak is extremely helpful in the resolution of the present issue. There an amendment to the zoning ordinance made a number of substantial zoning changes in the preexisting ordinance, including the rezoning of certain premises to 'highway business.' It was there held that, as a bare minimum, the entire district rezoned for highway business, of which the subject parcel was a part, was to be deemed the measure of the area with respect to the protest provisions of the statute, rather than individual plots or lots within that district such as was the subject property. The court noted (69 N.J.Super. at 315, 174 A.2d at 280) that 'to hold otherwise would be to permit one lot or block (or its surrounding area) to control the passage of an amendment relating to an entire district.'

Here, since there was only one change, the protest provisions of the statute are to be applied to the entire 450 acres affected by the ordinance. With relation to them, the statute permits a protest by the owners of land in the affected area, directly opposite, I.e., on the opposite side of the street with only the street intervening, Penny v. City of Durham, 249 N.C. 596, 107 S.E.2d 72 (Sup.Ct.1959), to the rear, or on either side thereof. This contrasts with the statutes of a number of other states which combine the latter three groups as one, usually as the owners of contiguous or adjacent lands. Towle v. Nashua, 106 N.H. 394, 212 A.2d 204 (1965); Parsons v. Town of Wethersfield, 135 Conn. 24, 60 A.2d 771, 4 A.L.R.2d 330 (Sup.Ct.Err.1948). While our statute does not define 'rear' or 'side,' we construe the rear as meaning that portion of the periphery of the rezoned area opposite the main street frontage, and the sides as those portions of its periphery other than the front or rear.

We accordingly hold that neither the north side of Van Riper Avenue nor the south side of John Henry Drive qualified as a separate 'side' or 'rear' of the rezoned area within the purview of the statute. They were but a part of its continuous easterly boundary. At the least, the area of the land represented by the signers of the protest was to be compared with the total area of the lots or lands along the easterly boundary in determining whether the protest was such as to require a two-thirds vote of the governing body. So considered, it is clear that the protest did not include the required 20% Of the area of the lots or lands. It follows that a two-thirds vote of the governing body was unnecessary and that the amendatory ordinance was properly adopted.

In passing upon the validity of the ordinance the role of the courts is tightly circumscribed. Kozesnik v. Montgomery Tp., 24 N.J. 154, 167, 131 A.2d 1 (1957). There is a presumption that the municipal governing body acted reasonably and that the resulting legislation is valid. Ward v. Montgomery Tp., 28 N.J. 529, 539, 147 A.2d 248 (1959); Bartlett v. Middletown Tp., 51 N.J.Super. 239, 261, 143 A.2d 778 (App.Div.1958), certif. den. 28 N.J. 37, 144 A.2d 907 (1958). We may not pass upon the wisdom of a particular ordinance, and debatable issues or questions of policy involved in its passage must be resolved in favor of the municipality. Vickers v. Tp. Comm. of Gloucester Tp., 37 N.J. 232, 242, 181 A.2d 129 (1962), appeal dis. 371 U.S. 233, 83 S.Ct. 326, 9 L.Ed.2d 495 (1963). We are not free to compare the views of the municipal governing body with our own and from this to determine what policy would be in the best interest of the community's residents. The wisdom of the course chosen by the governing body, as distinguished from its legality, is reviewable only at the polls. Kozesnik v. Montgomery Tp., Supra, 24 N.J. at 167, 131 A.2d 1.

In sum, we may interfere only when the presumption in favor of the ordinance is overcome by an affirmative showing that it is arbitrary or unreasonable in the light of the standards prescribed by N.J.S.A. 40:55--32; Kozesnik v. Montgomery Tp., Supra, 24 N.J. at 167, 131 A.2d 1. The burden of proof is upon plaintiffs. Fischer v. Bedminster Tp., 11 N.J. 194, 204, 93 A.2d 378 (1952). That burden is a heavy one. Ward v. Scott, 16 N.J. 16, 23, 105 A.2d 851 (1954); Vickers v. Tp. Comm. of Cloucester Tp., Supra, 37 N.J. at 242, 181 A.2d 129; Ward v. Montgomery Tp., Supra, 28 N.J. at 539, 147 A.2d 248.

Plaintiffs principally base their contention, that the action of the municipal governing body was unreasonable, arbitrary and capricious, upon the fact that it was not in accordance with a comprehensive plan and did not receive adequate consideration by the planning board.

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