Rusnak v. Woodbridge Tp.

• Court: New Jersey Superior Court
• Writing for the Court: THOMPSON
• Citation: Rusnak v. Woodbridge Tp., 174 A.2d 276, 69 N.J.Super. 309 (N.J. Super. 1961)
• Decision Date: 27 September 1961
• Docket Number: No. L--2757,L--2757
• Parties: Joseph RUSNAK et al., Plaintiffs, v. TOWNSHIP OF WOODBRIDGE et al., Defendants.

Page 309

69 N.J.Super. 309

174 A.2d 276

Joseph RUSNAK et al., Plaintiffs, v. TOWNSHIP OF WOODBRIDGE et al., Defendants.

No. L--2757.

Superior Court of New Jersey, Law Division.

Sept. 27, 1961.

Edward J. Dolan, Carteret, for plaintiffs.

Platoff, Platoff, & Heftler, Union City, for defendants S. Klein Department Stores, Inc., and Monroe Estates, Inc.

Stewart M. Hutt, Perth Amboy, for all other defendants.

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

This is an action in lieu of prerogative writs brought by residents, officials and former officials of the Township of Woodbridge seeking to set aside the passage of a zoning amendment by the governing body of the township on the ground that such passage was contrary to the requirements of N.J.S.A. 40:55--35. The matter comes before the court Via cross-motions for summary judgment on behalf of plaintiffs and defendants. The essential facts pertinent to the issue presented here for determination have been agreed upon through stipulation by all the parties to this suit. There being no substantial question as to a material fact, the court is requested to decide this case as a matter of law in relation to the applicable facts.

On or about January 2, 1958 the defendant Township Committee of the Township of Woodbridge contracted with Community Planning Associates, Inc. for a study and survey of existing zoning in the township and for recommendations of changes and revisions in the existing zoning ordinance thereof. Pursuant to this contract, Community Planning Associates, Inc. made such a study and survey and submitted recommendations for revision to the defendant municipal planning board of the township. Included among the many suggestions made was a recommendation that the property owned by the defendant Monroe Estates, Inc. be classified part of a highway business zone to a depth of 1,250 feet from Route No. 25 and U.S. No. 1.

On August 30, 1960 the recommendations formulated by Community Planning Associates, Inc. were given final consideration by the municipal planning board, and a proposed zoning ordinance amendment embodying most of these suggestions was favorably reported by the board. On September 6, 1960 the proposed amended ordinance was introduced and passed at first reading, by reference to title only, by defendant township committee and ordered to be printed. The amended ordinance was duly published and notice of a public hearing thereon set down for September 20, 1960 was duly given.

On the evening of September 20, 1960, prior to consideration and final passage of the proposed amendment, a written and signed petition was presented to the governing body limited to protesting the proposed change of the subject tract to a highway business zone use. The signatories are plaintiffs to this action. The protestants who executed said petition constitute the owners of in excess of 20% Of the area of the lots or lands directly opposite the premises owned by the defendant Monroe Estates, Inc., extending 100 feet (exclusive of street space) from the Ford Avenue frontage thereof. Said protestants constitute the owners of in excess of 20% Of the area of the lots or lands directly opposite the subject premises extending 100 feet (exclusive of street space) from the Ford Avenue frontage (westerly frontage) thereof plus the Garden State Parkway (easterly) frontage thereof. However, said persons make up the owners of less than 20% Of the area of the lots or lands surrounding the premises owned by defendant Monroe Estates, Inc. extending 100 feet (exclusive of street space) therefrom. They also constitute the owners of less than 20% Either of the area of all the lots or lands throughout the Township of Woodbridge, the zoning of which was changed by the amendment, or the lots or lands in the rear thereof extending 100 feet therefrom, or of the lots or lands of each side thereof or directly opposite thereto extending 100 feet (exclusive of street space) therefrom. They are also the owners of less than 20% Of the area of all of the lots or lands throughout the Township of Woodbridge the zoning of which was changed to a highway business zone, or of the lots or lands in the rear thereof extending 100 feet therefrom, or of the lots or lands on either side thereof or directly opposite thereto extending 100 feet (exclusive of street space) therefrom.

On September 20, 1960 the township committee adopted the amending zoning ordinance by a vote of six in the affirmative and five in the negative. Individual protested changes or amendments to the former zoning ordinance contained in the proposed zoning amendment were not discussed or voted on separately, but the proposed ordinance was voted on as a whole. The amendment made several substantial zoning changes in the pre-existing zoning ordinance, including alterations in the zone use map, all of which affected many lots and lands throughout the township in addition to the premises owned by defendant Monroe Estates, Inc.

The end result of this case turns upon judicial interpretation of the second paragraph of N.J.S.A. 40:55--35, which governs the effect of land-owner- protests on the requirements for valid adoption of zoning amendments. The statute in full reads as follows:

'Such regulations, limitations and restrictions may be amended, changed, modified, or repealed, and the boundaries of such districts may be changed by ordinance, but no amendment or change shall become effective unless the ordinance proposing such amendment or change shall first have been submitted to the planning board, when such board exists, for approval, disapproval or suggestions, and the planning board shall have a reasonable time, not less than thirty days, for consideration and report, and in the case of an unfavorable report by the planning board such amendment shall not become effective except by a favorable vote of two-thirds of the governing body.

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 100 feet therefrom, or of the lots or land on either side thereof or directly opposite thereto extending 100 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 parties in this case dispute what Quantum of property must be included in computing the protest area within the intendment of N.J.S.A. 40:55--35, second paragraph. Plaintiffs contend that the area of computation need only encompass land in the rear extending 100 feet therefrom or on either side or directly opposite the tract owned by Monroe Estates, Inc. extending 100 feet therefrom (exclusive of street space). Plaintiffs also wish to treat this single tract as one, distinct zoning district. It is conceded that should neither construction be adopted by this court, defendants would prevail because these owners would not then equal a percentage sufficient to require a two-thirds vote for valid passage of an amendment.

Defendants take the position that the amendment of September 20, 1960 was tantamount to an entirely new ordinance effecting changes in many areas, and that under such circumstances the petitioners must constitute owners of at least 20% Either of the lots...