Sparta Tp. v. Spillane

• Decision Date: 25 October 1973
• Parties: The TOWNSHIP OF SPARTA, in the County of Sussex, a municipal corporation of the State of New Jersey, Plaintiff-Respondent, v. Lawrence SPILLANE et al., Defendants-Appellants. TOWNSHIP OF MOUNT OLIVE, a municipal corporation of the State of New Jersey, et al., Plaintiffs-Appellants, v. LAKELAND INDUSTRIAL PARK, INC., a New Jersey corporation, and Amusement Corporation of America, a Delaware corporation, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 519

125 N.J.Super. 519

312 A.2d 154

The TOWNSHIP OF SPARTA, in the County of Sussex, a municipal

corporation of the State of New Jersey, Plaintiff-Respondent, v. Lawrence SPILLANE et al., Defendants-Appellants.

TOWNSHIP OF MOUNT OLIVE, a municipal corporation of the

State of New Jersey, et al., Plaintiffs-Appellants, v. LAKELAND INDUSTRIAL PARK, INC., a New Jersey corporation, and Amusement Corporation of America, a Delaware

corporation, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Argued Sept. 11, 1973.

Decided Oct. 25, 1973.

Gerald B. Hanifan, Newark, for defendants-appellants Spillane and others.

Frank L. Patti, Sparta, for plaintiff-respondent Tp. of Sparta.

Herbert A. Vogel, Morristown, for plaintiffs-appellants Tp. of Mount Olive and Grace Hilpert, Tp Clerk (Vogel, Chait & Wacks, Morristown, attorneys).

Richard B. Girdler, Denville, for plaintiffs-appellants Midgette and others (Dunn & Infinito, Denville, attorneys; Warren E. Dunn and Richard B. Girdler, Denville, on the brief).

Arnold M. Smith, Paterson, for defendants-respondents Lakeland Industrial Park, Inc. and others.

Before Judges CARTON, SEIDMAN and GOLDMANN.

The opinion of the court was delivered by

CARTON, P.J.A.D.

The issue to be resolved in these appeals is whether the referendum procedure provided for in the Faulkner Act applies to an amendment to the zoning ordinance of a municipality which has adopted the provisions of that act. The Township of Sparta and Township of Mount Olive cases involve this identical issue. Consequently they will be considered together, although they have not been formally consolidated.

Sparta has operated since 1960 under the Council-Manager Plan B of the Faulkner Act, N.J.S.A. 40:69A--99 et seq. On April 12, 1972 the township council adopted an amendment to its zoning ordinance authorizing a Planned Unit Development (P.U.D. pursuant to N.J.S.A. 40:55--55 to 67. The plans for the P.U.D. were originally proposed by a subsidiary of a large corporation owning about 2,000 acres in Sparta.

The amendatory ordinance was referred to and acted upon favorably by the planning board after extended public hearings. Thereafter defendants in the Sparta action filed a petition with the municipal clerk seeking a referendum pursuant to N.J.S.A. 40:69A--185. The petition was found sufficient by the township clerk to comply with N.J.S.A. 40:69A--187, whereupon Sparta Township sought a declaratory judgment to determine whether the referendum provisions of the Faulkner Act were applicable to amendments of a zoning ordinance. The trial judge granted the township's motion for summary judgment, holding that such provisions were not applicable.

Mount Olive Township operated under the Mayor and Council Plan E of the Faulkner Act, N.J.S.A. 40:69A--68 to 73. On August 25, 1972 the Township council, over strong opposition, adopted an ordinance amending the township zoning ordinance by establishing a new zone denominated C--R (Commercial-Recreational). Permissible uses in this zone included permanent year-round or seasonal amusement parks. Two of the defendants in the Mount Olive case own about two-thirds of the land in the newly created C--R zone on which they intend to construct and operate a major amusement park. The lands in question are located near Interstate Route 80 and were originally zoned for industrial uses.

The amendment was approved by the mayor after is passage by the council. On September 18 the plaintiffs in the Mount Olive case filed a petition with the township clerk for a referendum on the amendatory ordinance. This petition was found to comply with the statutory requirement.

As in the Sparta action, a declaratory judgment was sought by the municipality as to the applicability of the referendum procedures to the ordinance. The trial judge ruled in this case, as did the trial judge in the Sparta litigation, that the referendum procedure was not applicable.

The issue raised here presents a question not directly decided before in New Jersey. The Faulkner Act, in pertinent part, provides:

The voters shall also have the power of referendum which is the power to approve or reject at the polls any ordinance submitted by the council to the voters or any ordinance passed by the council, against which a referendum petition has been filed as herein provided. No ordinance passed by the municipal council, except when otherwise required by general law of permitted by the provisions of section 17--32(b) of this act, shall take effect before twenty days from the time of its final passage and its approval by the mayor where such approval is required. * * * (N.J.S.A. 40:69A--185) A companion section of the statute (N.J.S.A. 40:69A--184) provides a slightly different procedure for expressing public participation in municipal government through the initiative process:

The voters of any municipality may propose any ordinance and may adopt or reject the same at the polls, such power being known as the initiative. * * *

The Faulkner Act was adopted in order to encourage public participation in municipal affairs in the face of normal apathy and lethargy in such matters. The act gave municipalities the option of choosing one form or another of local government best suited to its needs. It was a legislative demonstration of the democratic ideal of giving the people the right of choosing the form of government they preferred and the opportunity to exercise the powers under that form to the furthest limits. Some 76 of the 567 municipalities of this State have adopted one form or another of the forms of government authorized under the Faulkner Act.

The initiative and referendum processes authorized by the act comprise two useful instruments of plebiscite power and provide a means of arousing public interest. Ordinary rules of construction would, of course, dictate that such provisions should be liberally construed. See 5 McQuillin, Municipal Corporations, § 16.48 at 199--200 (1969), where the author advocates that these procedures should be respected and given wide use if possible. It should be noted, however, that he adds a caveat that any grant of the power of initiative and referendum and its exercise are subject to and must be construed with governing constitutional and statutory provisions. 5 McQuillin, Supra at § 16.50. See also Newark v. Department of Civil Service, 68 N.J.Super. 416, 425, 172 A.2d 681 (App.Div.1961); Cuprowski v. Jersey City, 101 N.J.Super. 15, 27, 242 A.2d 873 (Law Div.1968), aff'd 103 N.J.Super. 217, 247 A.2d 28 (App.Div.1968).

Undeniably, zoning issues often are of great public interest and some, as in the present case, may concern the entire population of the municipality involved. In both the cases before us it has been argued forcefully that the proposed ordinances change or alter the complexion of the municipalities. Thus, the ultimate question is whether major decisions should be made by the planning boards and governing bodies, with only voiced public approval or dissent as prescribed in the Zoning Act, or whether they should be open to a final decision by the vote of the entire population. This issue pits the philosophy of comprehensive zoning planned by a panel of experts and adopted by elected and appointed officials, against the philosophy of a wider public participation and choice in municipal affairs.

Other states faced with similar problems of referendum provisions have arrived at conflicting determinations. See generally, 42 Am.Jur.2d, Initiative and Referendum, § 9 at 657; Annotation, 'Referendum--Nature of Ordinance,' 122 A.L.R. 769 (1939). However, the decisions of other states furnish little aid here since the laws of the states involved differ in substantial respects from the New Jersey statutes.

Our consideration of the applicability of the referendum provided for in the Faulkner Act to the zoning procedure logically should begin with an examination of the treatment accorded by our courts to the companion process of the initiative. Smith v. Livingston Tp., 106 N.J.Super. 444, 256 A.2d 85 (Ch.Div.1969), aff'd o.b. 54 N.J. 525, 257 A.2d 698 (1969), held that the initiative was not applicable to amendatory zoning ordinances. In so holding, Judge Mintz found that the zoning statutes represented an exclusive grant of power by the Legislature to municipalities generally and was not impliedly superseded by the later adopted Faulkner Act. He noted that the Zoning Act is specific in detailing the manner in which zoning ordinances may be amended; that steps in the zoning procedure include consideration by the municipal planning board. The opportunity of property owners to object, and approval by the governing body. He also pointed out that in...