Slattery v. Caldwell Tp.

• Decision Date: 22 April 1964
• Docket Number: No. A--78,A--78
• Citation: 199 A.2d 670,83 N.J.Super. 317
• Parties: James SLATTERY, William Illge and Wildlife Preserves, Inc., a corporation of the State of New Jersey, Plaintiffs-Respondents, v. TOWNSHIP OF CALDWELL, a municipal corporation in the County of Essex and State of New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 317

83 N.J.Super. 317

199 A.2d 670

James SLATTERY, William Illge and Wildlife Preserves, Inc. a corporation of the State of New Jersey Plaintiffs-Respondents, v. TOWNSHIP OF CALDWELL, a municipal corporation in the County of Essex and State of New Jersey, Defendant-Appellant.

No. A--78.

Superior Court of New Jersey Appellate Division.

Argued April 13, 1964.

Decided April 22, 1964.

W. Eugene San Filippo, Newark, for appellant (Robert W. Brady, Newark, attorney).

Robert Muir, Jr., Morristown, for respondents (Mills, Doyle & Muir, Morristown, attorneys; Robert Muir, Jr., Morristown, on the brief).

Before Judges GOLDMANN, KILKENNY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant appeals from a Law Division summary judgment invalidating an amendment to the Caldwell Township zoning ordinance which would classify an agricultural-residential zone as Industrial Zone 2 and forbid any further residential development in that zone. The sole issue requiring decision is whether an amendment establishing a use zone and describing one of its boundaries as 'Proposed Federal Highway I--80' is so vague and uncertain as to be invalid. The question appears to be one of first impression in New Jersey.

The facts may be found in 79 N.J.Super. 591, 192 A.2d 330 (1963) and need not be repeated. Although plaintiffs own properties within the area affected by the zoning change, these do not bound on 'Proposed Federal Highway I--80.' The nearest, we are told, is well over a hundred feet from that boundary. In challenging the validity of the zoning amendment, plaintiffs contended, and the trial judge held, that the boundary description was so vague as to amount to an improper exercise of the zoning power.

The amendment contains no definite description of 'Proposed Federal Highway I--80,' whether by metes and bounds or otherwise. There is no map attached to or made a part of the amendment, nor is there reference to a specific map that may be consulted by anyone who might be interested in the location of the mentioned highway. We would reach a different result were there such a map reference. Burmore Co. v. Smith, 124 N.J.L. 541, 546, 12 A.2d 353 (E. & A. 1940).

Zones or districts must be described with reasonable certainty and must have definite boundaries so that the ordinance may be applied practically. 1 Rathkopf, Law of Zoning and Planning, 8--25 et seq. (1962); 8 McQuillin, Municipal Corporations (3d ed. rev. 1957), § 25.89, p. 205. Where it is not possible to define with certainty the boundaries of a zone from the ordinance itself and a zoning map, the ordinance cannot be enforced and is invalid. Village of Westlake v. Elrick, 83 N.E.2d 646, 647 (Ohio Ct.App.1948); Auditorium, Inc. v. Board of Adjustment, etc., of Wilmington, 8 Terry 373, 47 Del. 373, 91 A.2d 528 (Sup.Ct.1952). And see, Annotation 39 A.L.R.2d 766, 768 (1955).

At the time plaintiffs brought their proceeding in lieu of prerogative writs there was no physical evidence as to the location of the highway. Nor is there presently, as we were informed by defense counsel at oral argument. Had the right-of-way been laid down, or construction within the township boundaries progressed to the point where the location of the highway was readily determinable, plaintiffs would have no cause for complaint. As it is, they could not determine just where the highway was to run, from either work done on the ground or from a map attached to the ordinance or referred to therein.

Defendant relies upon certain maps prepared by the New Jersey State Highway Department and an affidavit of its assistant district engineer, Coupe, as evidence that the route of I--80 was ascertainable at the time the ordinance was enacted. Coupe said that the drawings showed the sidelines of the proposed highway and that to his knowledge no change was contemplated. The maps were prepared in May 1961; the amendatory ordinance was adopted December 27, 1961 and further amended on January 29, 1962. Plaintiffs brought their in lieu action contesting the validity of the ordinance on February 5, 1962. On November 19, 1962 defendant adopted an ordinance almost identical with the two just mentioned and repealing those ordinances insofar as they were inconsistent. None of them mentioned the State Highway maps and there was nothing to indicate their existence to an inquiring person. It is apparent that the State could have altered the route of the highway because of practical problems connected with title acquisition, construction, and the like. The fact that the State has since searched the titles of properties and started condemnation as to certain others, does not change the picture. There is still no road physically evident. There is still no map.

An affidavit by L. Burdette Demarest, who was township engineer in 1961 (since retired) states that he received the State Highway drawings showing the right-of-way sidelines of the proposed highway and that he...