S & L Associates, Inc. v. Washington Tp.

• Decision Date: 30 June 1961
• Docket Number: 115,Nos. A--114,s. A--114
• Citation: 172 A.2d 657,35 N.J. 224
• Parties: S & L ASSOCIATES, INC., Plaintiff-Respondent and Cross-Appellant, v. TOWNSHIP OF WASHINGTON, a municipal corporation of the State of New Jersey, Harold Umstadter and Philip C. Scott, Defendants-Appellants and Cross-Respondents.
• Court: New Jersey Supreme Court

Page 224

35 N.J. 224

172 A.2d 657

S & L ASSOCIATES, INC., Plaintiff-Respondent and Cross-Appellant, v. TOWNSHIP OF WASHINGTON, a municipal corporation of the State

of New Jersey, Harold Umstadter and Philip C.

Scott, Defendants-Appellants and

Cross-Respondents.

Nos. A--114, 115.

Supreme Court of New Jersey.

Argued April 24, 1961.

Decided June 30, 1961.

William M. Feinberg, Bayonne, for plaintiff-respondent and cross-appellant (Feinberg, Dee & Feinberg, Bayonne, attorneys).

Ralph Porzio, Morristown, for defendants-respondents, Washington Tp. and Umstadter and Scott (Shuback & Orr, Morristown, attorneys for Washington Tp.; Jeffers, Mountain & Franklin, Morristown, attorneys for Umstadter and Scott).

The opinion of the court was delivered by

HANEMAN, J.

Plaintiff filed an action in lieu of prerogative writs in the Law Division contesting the validity of the zoning ordinance of the Township of Washington adopted in 1957 and an amendment adopted in 1958. Plaintiff also sought to have certain lands owned by it zoned for industrial use. The Law Division dismissed plaintiff's complaint on the merits after a full hearing. Plaintiff appealed to the Appellate Division, which reversed the judgment of the Law Division and set aside the original ordinance and the amendment thereof. S & L Associates, Inc. v. Washington Twp., 61 N.J.Super. 312, 335, 160 A.2d 635 (App.Div.1960). Defendants filed a petition for certification by this court of the judgment of the Appellate Division and plaintiff filed a cross-petition for certification. This court granted both petitions, 33 N.J. 331, 164 A.2d 382 (1960).

As noted in 61 N.J.Super. 318, 160 A.2d 635 plaintiff contended that the ordinances were invalid for the following reasons:

'* * * the ordinances were not drawn in accordance with a comprehensive plan; they did not comport with the purposes of zoning as set out in R.S. 40:55--32, N.J.S.A.; they constituted 'spot zoning,' in violation of the design and purpose of the Zoning Act; and they were the result of personal favoritism, collusion and discrimination by municipal officials not acting in the best interests of the community's health, safety, welfare and morals. Plaintiff further contended that the ordinances should be set aside because tainted with the self-interest of the officials who participated in their preparation and adoption.'

Plaintiff bottomed its argument concerning the self-interest of officials upon the participation of Guerin and Hemmings as members of the municipal planning board, in preparation and adoption of the ordinances.

The Appellate Division concluded that there was no merit to plaintiff's attack except insofar as the participation of Guerin and Hemmings was concerned, and found the ordinance invalid for this latter reason.

Subsequent to the Appellate Division judgment and prior to argument before this court, Washington Township adopted an ordinance incorporating all of the provisions of the original and amendatory ordinances here challenged. This action was accomplished without any participation by Guerin and Hemmings, who had theretofore resigned from the planning board.

Under the general rule that the status of the law in effect at the time of the disposition of a cause by an appellate court governs, Borough of Little Ferry v. Bergen County Sewer Authority, 9 N.J. 536, 89 A.2d 18 (1952); Crecca v. Nucera, 52 N.J.Super. 279, 145 A.2d 477 (App.Div.1958); Allendale Congregation of Jehovah's Witnesses v. Grosman, 30 N.J. 273, 152 A.2d 569 (1959), the problem to be resolved by this court is the validity of the presently existing ordinance rather than of the superseded original and amendatory ordinances. Since these enactments are in identical language and plaintiff urges no additional reasons as a ground for relief, we will consider plaintiff's arguments as though directed at the new ordinance. So viewed, we are in accord with the Appellate Division to the extent that that court found the ordinances are not invalid for various reasons advanced by plaintiff. On the question, however, of invalidity arising from the potential conflicting interests of Guerin and Hemmings, the sole basis upon which the Appellate Division found the ordinances invalid, we express no opinion since this problem has been rendered moot by their resignation from the planning board prior to municipal action on the new ordinance. We conclude, therefore, that the present ordinance is valid.

However, on oral argument counsel agreed that although there has been no change in the use of plaintiff's property or in the other sections of the municipality classified for industrial use from the date of the passage of the original ordinance, uses have been established in various other zones subsequent to the judgment of the Appellate Division and prior to the passage of the present ordinance which do not conform to the provisions of the original ordinance. These uses were apparently undertaken...