Kozesnik v. Montgomery Tp.
| Decision Date | 08 April 1957 |
| Docket Number | A--74,Nos. A--73,s. A--73 |
| Citation | 24 N.J. 154,131 A.2d 1 |
| Parties | Francis J. KOZESNIK and Lawrence E. Benson, Plaintiffs-Appellants, v. TOWNSHIP OF MONTGOMERY and Minnesota Mining and Manufacturing Company, Defendants-Respondents. Charles F. SLOVER and Nanette T. Slover, Plaintiffs-Appellants, v. TOWNSHIP OF MONTGOMERY and Minnesota Mining and Manufacturing Company, Defendants-Respondents. James A. DEPEW, Madeline H. Depew, Charles L. Fontana, Jane L. Fontana, Walter H. Tavener, Elizabeth A. Tavener, Joseph A. Lynch, Elsie A. Lynch, Henry W. Peters, Helen R. Peters, Vincent J. Pascucci, Muriel G. Pascucci, Charles F. Slover and Nanette T. Slover, Plaintiffs-Appellants, v. TOWNSHIP OF HILLSBOROUGH, a municipal corporation; Richard Van Doren, David W. Amerman and Richard Musa, Members of the Township Committee; Minnesota Mining and Manufacturing Company; Henry Johanson, Building Inspector; and A. Y. Taylor, Zoning Officer, Defendants-Respondents. |
| Court | New Jersey Supreme Court |
Ralph S. Mason, Princeton, argued the cause for plaintiffs-appellants Francis J. Kozesnik and Lawrence E. Benson (Mason, Griffin & Moore, Princeton, attorneys).
William Ozzard, Somerville, argued the cause for plaintiffs-appellants Charles F. Slover and Nanette T. Slover (Beekman & Ozzard, Somerville, attorneys).
Fred G. Stickel, III, Newark, argued the cause for defendant-respondent Minnesota Min. & Mfg. Co. (Stickel & Stickel, Newark, attorneys, Fred G. Stickel, III, Newark, of counsel).
George W. Allgair, Somerville, argued the cause for defendant-respondent Montgomery Tp. (George W. Allgair, Somerville, and A. Dix Skillman, Belle Mead, attorneys; George W. Allgair, Somerville, of counsel).
David D. Furman, Trenton, argued the cause for the Attorney General as intervenor (Grover C. Richman, Jr., Atty. Gen.; David D. Furman, Deputy Atty. Gen., of counsel).
Willard G. Woelper, Newark, argued the cause for plaintiffs-appellants James A. Depew, and others (Toner, Crowley, Woelper & Vanderbilt, Newark, attorneys; Willard G. Woelper, Newark, of counsel; Robert A. Matthews, Newark, on the brief).
George W. Allgair, Somerville, argued the cause for defendants-respondents Hillsborough Tp. and others (George W. Allgair, Somerville, attorney for and of counsel with defendants-respondents).
The opinion of the court was delivered by
Plaintiffs challenge the validity of amendments to the zoning ordinances of the Township of Hillsborough and the Township of Montgomery. The trial court upheld the measures. On our own motion we certified appeals prosecuted to the Appellate Division.
Early in 1953 Minnesota Mining and Manufacturing Company (herein called 3M) informed the townships of the existence of diabase rock of unusual quality in the Sourland Mountain, and asked for amendments of their respective ordinances to the end that it might quarry and process the rock for ultimate use as colored roofing granules. 3M proposed that a quarry and crushing plant be located in Hillsborough and the coloring plant in Montgomery, the granules to be carried from Hillsborough to the coloring plant in Montgomery by a conveyor system. The total operation would thus involve an integration of activities in the two townships.
Sourland Mountain is a prominent geographic feature of the townships. At the time of 3M's application, the areas here involved were zoned for agricultural or residential uses. The mountain has not lent itself to agricultural development and is much too rugged for exploitation for mass residential development, but is attractive for isolated custom home construction and some homes have been located in the mountain, although not within the zones ultimately established in response to 3M's application. There has been no utilization of the lands in the new zones within recent years.
Both townships are sparsely inhabited. In Hillsborough, which covers 54.7 square miles, the population in 1950 was 3,875 and in 1953 was 4,594. A portion of the township was set aside for industrial development, but failed to attract industry. The actual utilization of land consists, in addition to homes, of some commercial uses to meet local needs and some large governmental installations. Montgomery covers 31.8 square miles and its population totalled 3,819 in 1950 and 3,900 in 1954. Prior to the amendment in question its lands were zoned either for residential or business use. Most of the land is used for farming. There were but 620 houses in the township in February 1954. The New Jersey Neuro-Psychiatric Institute at Skillman (which houses about 1,500 of the total population), a fertilizer packaging plant, a private sanatorium, a farm implement agency and a store, complete the story of land utilization in the township. There are no municipal services other than road construction and maintenance and police protection.
3M's decision to quarry in Hillsborough was dictated by the special quality of the diabase rock there found, the amount of overburden which would have to be removed, and the presence of an appropriate facing for quarrying which would obviate the more difficult and expensive pit-type operation. Montgomery was preferred as the site for the coloring plant because of easier access to existing railroad facilities. It was contemplated that about 90% Of the granules would move by rail and the balance by truck.
3M's application excited great local interest. After extensive public debate, both townships made the legislative decision to rezone in harmony with 3M's request in December 1953. A complaint in lieu of prerogative writ was filed against each municipality. The Montgomery suit resulted in the judgment here under review. Prior to trial, Hillsborough repealed its amendatory ordinance pursuant to what was accepted as a verdict at the polls, and the action against it was accordingly dismissed. On February 24, 1955, again after a local election, the ordinance was reenacted and there followed the Hillsborough litigation now before us.
Although for reasons hereinafter expressed we feel compelled to set aside the amendatory ordinances of both townships, we are satisfied that the basic plan may lawfully be achieved. Our purpose here is to consider those objections, valid and invalid, which will bear upon the course the municipalities may take if they should determine to further the program.
There of course is nothing invidious in the circumstance that the townships cooperated in a matter of common interest. On the contrary, municipalities are concerned with land utilizations abutting their lines, and hence a concurrent effort to integrate them serves the objective of our zoning statute. Borough of Cresskill v. Borough of Dumont, 15 N.J. 238, 104 A.2d 441 (1954); Duffcon Concrete Products, Inc., v. Borough of Cresskill, 1 N.J. 509, 64 A.2d 347, 9 A.L.R.2d 678 (1949); Bassett, Zoning (1940), p. 92.
Hillsborough amended its ordinance to create a limited industrial zone wherein it authorized residential and agricultural uses as theretofore and additionally permitted 'Quarries.' The ordinance conditions the right to quarry upon the issuance of a permit by the township committee upon an application to be referred to the planning board for review and report thereon. Standards are prescribed of which the following may be noted:
(1) No quarry shall be conducted on less than 200 contiguous acres within the zone.
(2) Both a quarry and a processing plant shall not be conducted on less than 400 contiguous acres within the zone.
(3) No part of any of the use, except a railroad spur and approved access roads, shall be (a) within 100 feet from a boundary of the zone, or (b) within 400 feet from the nearest right-of-way 'of any public road or highway now maintained by public authority', or within 400 feet 'from any dwelling existing at the introduction of this Ordinance.'
(4) No quarry excavating shall be done within 500 feet 'from any such zone boundary or right-of-way line', nor within 1,000 feet 'from any such dwelling', provided that the distance limitation with respect to any such zone boundary shall not apply if the boundary is contiguous to a boundary of a zone in which quarrying or processing of quarry products or both is permitted in an adjoining municipality.
Further provisions with appropriate standards give added assurance of safe operation.
The ordinance provides that 'No quarry shall be permitted whose primary use of the product extracted shall be the sale of the extracted product in an unprocessed state for road building or the manufacture of concrete.' This restriction is intended to confine quarrying to rock having sufficient value to bear the cost of the protective measures required under the ordinance to safeguard the public interest and apparently as well to preclude general quarrying which would lead to substantial trucking operations through the community to meet relatively local demands. In short, the ordinance is so framed that for all practical purposes the industrial activity authorized is pinpointed to the extraction and processing of diabase rock for limited ultimate use.
Various challenges are bottomed upon R.S. 40:55--32, N.J.S.A., which reads:
Plaintiffs contend the amendment is not 'in...
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