Manning v. Borough of Paramus

• Decision Date: 04 November 1955
• Docket Number: No. A--490,A--490
• Citation: 37 N.J.Super. 574,118 A.2d 60
• Parties: Benjamin MANNING, Plaintiff-Respondent, v. BOROUGH OF PARAMUS, a municipal corporation of the State of New Jersey, Mayor and Council of the Borough of Paramus, and Planning Board of Borough of Paramus, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 574

37 N.J.Super. 574

118 A.2d 60

Benjamin MANNING, Plaintiff-Respondent, v. BOROUGH OF PARAMUS, a municipal corporation of the State of New Jersey, Mayor and Council of the Borough of Paramus, and Planning Board of Borough of Paramus, Defendants-Appellants.

No. A--490.

Superior Court of New Jersey Appellate Division.

Argued Oct. 17, 1955.

Decided Nov. 4, 1955.

James A. Major, Hackensack, argued the cause for appellants (Guy W. Calissi, Hackensack, attorney).

Walter T. Wittman, Hackensack, argued the cause for respondent.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

JAYNE, J.A.D.

On June 30, 1954 the Mayor and Council of the Borough of Paramus adopted an ordinance designated as No. 305 further to amend and supplement its zoning ordinance No. 201 of 1946, the effect of which is to locate an area of farm lands including those of the plaintiff within the boundaries of residential district A. The plaintiff was thereby aggrieved and instituted the present action in quest of a judgment nullifying the validity of the amendatory and supplemental ordinance.

The complaint embraces four counts, the first and third of which declare that the rezoning of the plaintiff's land was arbitrary and capricious, the second that the action of the municipal planning board was not conformable with any comprehensive zoning plan, and the fourth alleging that the rezoning amendatory ordinance was not procedurally considered, published and adopted in accord with the requirements of the applicable statutes.

Recognizing that a judicial determination of the allegations of the fourth and last count of the complaint, if sustained, might be favorably dispositive of the plaintiff's cause of action, the plaintiff moved for a summary judgment against the defendants on that count. In that endeavor he was successful, and a summary judgment was granted adjudging the ordinance No. 305 to be null and void. The borough officials who were concerned appeal.

We have no written memorandum from the trial judge expressive of the reasons upon which he based his conclusions. Cf. R.R. 1:2--8(h). However, the problem addressed to us is a narrow one in which there is no genuine and material issue of fact.

It is evident that the ordinance No. 305, containing 11 sections with many subdivisions, in its composition as originally proposed on June 9, 1954 and passed on first reading, supplemented the zoning ordinance of 1946 by the insertion in the latter of provisions to be thereafter identified as expressed in a section denominated as 5:6c--1. This particular supplemental portion of the ordinance specified in alphabetically designated succession some 14 uses to be permitted in the districts classified as Special Industrial Districts 'ES' in the 1946 zoning ordinance.

Among those permissible uses specified in the proposed ordinance as it was initially introduced was, we quote, '(b) club or private community center building.' This use as here described was contained in the text of the proposed ordinance as publicly published on June 17, 1954, with the notice that its final passage would be considered by the governing body at a meeting to be held on June 30, 1954. Additionally it may be stated that the public hearing so advertised was conducted.

It is not evident that the use designated as (b) was the subject of any controversial comment at the hearing, nor that its presence in or exclusion from the proposed ordinance in any wise concerned the plaintiff. However, it was conceded at the argument before us that the use (b) was deleted from the ordinance as finally adopted by the Mayor and Council at the meeting on June 30, 1954.

Significantly, no information concerning its deletion or the reason for it is discoverable in the official minutes of the proceedings at the meeting. Public notice of the final passage of the ordinance identified by its title was published on July 15, 1954.

We deduce from the prefatory recitals of the final judgment entered by the trial judge that he resolved as a matter of law that the mayor and council of the borough failed in the purported adoption of the ordinance to comply with the applicable requirements of our statutory law governing the enactment of municipal ordinances.

The notable statutory precepts to which counsel encourage our particular attention reside in R.S. 40:49--2 (since amended, L.1955, c. 121) N.J.S.A., and R.S. 40:55--34, N.J.S.A. The issue debated seems to encircle only two questions, viz., was the proposed ordinance amended in the respect mentioned by the official action of the governing body, and if so, did such deletion by amendment 'substantially alter the substance of the ordinance'?

Anent the first question, we are not informed factually in an evidential fashion whether the obvious deletion of subsection (b) was the result or not of unrecorded official action of the municipal governing body. We are not in the law to presume, however, in all circumstances that no essential official action was taken merely because of the absence of any relative entry thereof in the minutes prepared by the clerk or secretary at the meeting. Cf. Hasbrouck Heights Hosp. Ass'n v. Borough of Hasbrouck Heights, 15 N.J. 447, 454, 105 A.2d 521 (1954).

The legal presumption runs in the opposite direction toward the...