Ward v. Montgomery Tp.
| Decision Date | 05 January 1959 |
| Docket Number | No. A--43,A--43 |
| Citation | 28 N.J. 529,147 A.2d 248 |
| Parties | Herman M. WARD et al., Plaintiffs-Appellants, v. TOWNSHIP OF MONTGOMERY et al., Defendants-Respondents. |
| Court | New Jersey Supreme Court |
William E. Ozzard, Somerville, for plaintiffs-appellants (Beekman & Ozzard, Somerville, and Mason, Griffin & Moore, Princeton, attorneys).
George W. Allgair, Somerville, for defendants-respondents (George W. Allgair, Somerville, and A. Dix Skillman, Belle Mead, attorneys).
The opinion of the court was delivered by
Plaintiffs, taxpayers of the defendant Township of Montgomery, attack the validity of an amendment to its zoning ordinance which enlarged the manufacturing zone. The trial court sustained the municipal action, and we granted certification on our own motion of the appeal to the Appellate Division.
The township is a rural community primarily devoted to agricultural and residential pursuits. It contains an area of 31.8 square miles. It growth has been slow. The 1950 population was 3,819; by 1954 only 81 new residents had been added. Of the total number, 1,500 persons are housed at the New Jersey Neuro-Psychiatric Institute at Skillman. The pace of residential development has been comparable. Between 1946 and 1957 only 214 new homes were built. A fertilizer packaging plant, a private sanitarium, a farm implement agency, and a few stores complete the picture of land use. The only municipal services are schools, road construction and maintenance, and limited police protection. Under the original and amended zoning ordinance, only 6% Of the total land area is allotted to commercial, industrial and manufacturing use.
The tax rate has shown an upward trend, particularly over the past five years. In 1957 it was $12.40; this year it dropped to $11.39, apparently as the result of a surplus in the budget of the previous year. Schools loomed large in the cost of government. Their appropriation requirement for 1945 was $38,216.90; for 1956--1957 it rose to $180,895.95, and by 1957--1958 it had reached $248,222.25. School construction seemingly had exhausted the borrowing capacity. The increasing tax burden, especially on the farmers, stimulated a desire on the part of persons actively interested in the problem to attract industrial ratables to the township. That purpose and the use of zoning to accomplish it became an issue in local political campaigns. The record reveals that it has been debated in 11 elections since 1953, and that in nine of them the voters favored the exertion of efforts to encourage industry to settle in Montgomery.
The first zoning ordinance was adopted in 1940 and with the 1941 amendment it divided the township into two zones, business and residential. The business zone was rather unusual. A branch of the Reading Railroad ran through the westerly portion of the township, roughly northeast to southwest from Hillsborough Township to Hopewell Township. The area zoned for business was a strip 300 feet wide on cach side of the railroad right of way. It is of interest to note that throughout the evolution of the zoning ordinance, including the amendment now under attack, the planning for industrial growth has focused about the railroad.
Planning and zoning had been a matter of fairly constant study. In this connection the governing body used the services of The Government Consulting Service of the Institute of Local and State Government, University of Pennsylvania, for analysis of and recommended solutions to the various problems. In 1951, for example, a report from this Service to the planning board, under the heading 'Planning and Policy Questions for Township Zoning,' suggested avenues for study 'designed to elicit significant information and judgments that will be reflected in the zoning plan.' The suggestions related to 'population, residential development, farming commerce, industry, transportation and public services.' Continued attention to the orderly as well as fruitful development of land use brought about a general revision of the zoning scheme in 1953. Appellants say in their brief that this change emanated from 'two or three years of consultation and study by the municipal officials, during which period they had the professional assistance of the Government Consulting Service, Institute of Local and State Government, University of Pennsylvania.' Five use districts were brought into being thereby: agricultural, rural residential, commercial, manufacturing (to be called hereafter, M zone) and limited industrial. Creation of the last-named district was declared invalid in Kozesnik v. Montgomery Twp., 24 N.J. 154, 131 A.2d 1 (1957), but it has since been reestablished.
The original 600-foot strip divided by the railroad right of way was retained for manufacturing purposes. However, the M zone was extended by approximately 460 additional acres on one side of the tracks to the east and south from the northerly township line to County Road 13 S 1. The easterly boundaries then became U.S. Highway No. 206 and a brook called Cruser's Brook. On March 22, 1956, the zone was again enlarged by 40 acres to the southwest of County Road 13 S 1 and on the same side of the railroad.
The M zone did not bring industry in its wake, and on January 30, 1956 the planning board recommended to the township committee that an industrial commission be established. The suggestion was adopted by an ordinance introduced on February 23 and enacted on March 8, 1956. The record discloses that on February 18, 1956 a news item appeared in the Plainfield Courier News to the effect that the Minnesota Mining and Manufacturing Co. (referred to hereafter as 3 M) was contemplating the construction of a large manufacturing plant 'valued at more than a million dollars.' The tenor of the account was that negotiations were being conducted with Passaic Township to have it built there. The fact was that the Irvington Varnish and Insulator Co., a wholly owned 3 M subsidiary, was planning the project. The news article was brought to the attention of the township committee on March 6, 1956 by the mayor and the clerk was directed to make inquiries with respect to the possible location of the structure in Montgomery. Undoubtedly, the committee was aware that 3 M owned 56 acres in the portion of residential district lying generally west of both the railroad and the existing M zone.
The matter was referred to the planning board for study. The services of the Government Consulting Service were also enlisted. Members of the planning board and the township committee, as well as representatives of the industrial commission, visited the existing Irvington plant to study its operation and manufacturing processes. The factual data gathered in this fashion were submitted at a meeting of the planning board on April 2, 1956. Its members agreed that the proposed industry was a desirable one for the township and recommended that consideration be given to extending the M zone. At that meeting also, the industrial commission advised that its members agreed that industry was the solution of the high tax rate and would make for a 'balance of industry, residences and farms.' They reported also that by a 4--1 vote they favored allowing Irvington Varnish Co. to enter the municipality but that they made no recommendation as to zoning, believing that matter to be the function of the planning board and township committee. The written report of the Governmental Consulting Service, dated April 6, 1956, and submitted by the same consultant who had made the earlier studies, says among other things:
There follows an elaborate discussion of the proposed change in the M zone to include an additional 225 acres therein, including the 56 acres of 3 M, the boundaries of the enlarged area and the reasons therefor, and the relation of the amendment to the comprehensive zone plan. Thereafter, on April 9 the planning board again convened. The formal report of the Consultant was read and the proposed amendments to the zoning ordinance to accomplish the area increase of the M district...
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