Wolf v. Mayor and Borough Council of Borough of Shrewsbury

Citation440 A.2d 1150,182 N.J.Super. 289
PartiesWilliam WOLF, Judy Wolf, Richard King, Richard Doelger, Patricia Doelger, Patricia Zinn, John Palloway, Carol Palloway, Douglas McNitt, Richard Lees, Linda Lees, Michael Lichtig, Robert Giblon, Douglas Moses and Linda Moses, Plaintiffs-Appellants, v. MAYOR AND BOROUGH COUNCIL OF the BOROUGH OF SHREWSBURY, Planning Board of theBorough of Shrewsbury, and the Borough of Shrewsbury, a municipal corporationof the State of New Jersey, Defendants-Respondents, and Properties Ventures, Inc., and David H. and Charlene A. Marx, Defendants andIntervenors-Respondents.
Decision Date31 December 1981
CourtNew Jersey Superior Court – Appellate Division

William F. Dowd, Red Bank, for plaintiffs-appellants (Dowd & Reilly, Red Bank, attorneys).

Albert A. Zager, Red Bank, for defendants and intervenors-respondents (Carton, Nary, Witt & Arvanitis, Red Bank, attorneys).

Gagliano, Tucci & Kennedy, West Long Branch, for defendant-respondent Planning Board of Borough of Shrewsbury.

Wilentz, Goldman & Spitzer, Woodbury, for defendants and intervenors-respondents David H. Marx and Charlene A. Marx, join in the brief submitted on behalf of defendant and intervenor-respondent Properties Ventures, Inc.

Before Judges MICHELS, McELROY and J. H. COLEMAN.

The opinion of the court was delivered by


Plaintiffs, a group of residential property owners and taxpayers of defendant Borough of Shrewsbury (borough), appeal from a summary judgment of the Law Division entered in favor of the borough, defendants mayor, borough council and planning board of the borough, and defendants and intervenors Properties Ventures, Inc., and David H. Marx and Charlene A. Marx, which (1) denied plaintiffs' application to enlarge the time within which to institute this action in lieu of prerogative writs under R. 4:69-6(c), and (2) dismissed their action challenging the validity of the January 1979 and March 1979 amendments to the borough's zoning ordinance.

A brief review of the procedural history giving rise to this appeal is helpful to its resolution. The borough is a small residential community located in the eastern portion of Monmouth County, New Jersey. In 1979 the borough rezoned three large tracts of land located in its southern section. The borough changed these tracts from a single-family residential zone, requiring one-acre lots, to a planned residential development zone, which would permit townhouse development with two to five units an acre. The three tracts rezoned were the 85-acre Marx tract, the 84-acre Forgotson tract and the 119-acre Genola tract. These three tracts, aggregating 288 acres, represented approximately 20% of the land mass in the borough and 80% of the remaining vacant land available for development. Apparently the master plan adopted in 1978 recommended the change in the zoning for these three properties.

The notice for the January 1979 amendment, which first provided for the planned residential development zone, appeared on January 17, 1979 in the Daily Register, a local newspaper printed and published in Shrewsbury, and read as follows:


Pursuant to N.J.S.A. 40:49-2.1, notice is hereby given that the following ordinance is being revised pursuant to the Municipal Land Use Law, P.L.1975. C. 291 (C. 40:55D-1 et seq.).

An ordinance to amend the code of the Borough of Shrewsbury by amending Chapter 94-Zoning.

The main objectives of these revisions are to comply with the requirements of said Municipal Land Use Law by conforming to the provisions of the Master Plan of the Borough of Shrewsbury, prepared by Candeub-Fleissig and Associates, dated December, 1973.

Copies of said ordinance are on file on public examination and acquisition at the Office of the Shrewsbury Borough Clerk, Municipal Building, Broad Street and Sycamore Avenue, Shrewsbury, New Jersey.

The public hearing on this proposed ordinance shall be held on Monday, January 29, 1979, at 8:00 p. m., at the Shrewsbury Municipal Building.

DATED: January 16, 1979.

JEAN W. FABRY, Borough Clerk
Jan. 17 .$9.00

The ordinance referred to in the notice consisted of 75 pages and was adopted on January 29, 1979.

Thereafter, on February 12, 1979 the Daily Register published a second notice, virtually identical to the first notice set forth above, announcing that the borough council would consider amendments to the ordinance on March 12, 1979. Apparently these amendments were technical, consisting largely of corrections of typographical errors. These amendments were adopted on March 12, 1979. Thereafter, on March 10, 1980 the ordinance was again amended to revise and extend the border of the planned residential development zone.

On April 28, 1980 plaintiffs instituted this action by a complaint in lieu of prerogative writs, seeking a declaration that the three amendments to the zoning ordinance were invalid and void. Plaintiffs contended that the substantial change in the zoning plan would adversely affect the value of surrounding properties, radically alter the residential character of the borough, severely strain and exceed the capacity of the available municipal services, create traffic problems and increase taxes. Plaintiffs charged, generally, that the amendments to the zoning ordinance were arbitrary, capricious and unreasonable adopted without adequate study and consideration, and were without any rational basis in law or in fact. They also claimed, among other things, that the planning board and borough council failed to perform their respective duties to independently review and evaluate the proposed amendments.

Following the filing of answers defendant-intervenor Properties Ventures, Inc., moved for summary judgment, claiming that the action was time-barred since the complaint was not filed within the 45-day time period required by R. 4:69-6(a). The trial judge, on the basis of the pleadings and affidavits, granted summary judgment on grounds that (1) the action was not instituted timely and (2) "the minimum standards were followed insofar as the original (January 1979) ordinance prior to the hearings and subsequent thereto with respect to the passing of the actual ordinance in question...." The trial judge recognized that the changes in the zoning plan would affect substantial rights of the borough as well as the individual plaintiffs herein. Nonetheless, he denied plaintiffs' motion pursuant to R. 4:69-6(c) to enlarge the time within which this action could be instituted, ostensibly because there was no substantial constitutional question involved.

Thereafter, defendant-intervenors Marx moved for summary judgment with respect to plaintiffs' complaint challenging the March 1980 amendment to the zoning ordinance. The trial judge denied that motion, pointing out that the action with respect to this amendment was filed within the 45-day time period. In October 1980, plaintiffs moved to vacate the summary judgment dismissing their complaint directed at the January 1979 and March 1979 amendments on the ground that the notice of the January 1979 amendment, which proposed a substantial revision of the existing zoning ordinance, did not summarize the main objectives or provisions of the ordinance as required by N.J.S.A. 40:49-2.1, thereby not adequately notifying them of the proposed zoning change nor affording them an opportunity to be heard with respect thereto. The trial judge denied the motion, adhering to his original ruling that the January 17, 1979 notice complied with the requirements of the statute. The matter was subsequently set down for trial as to the validity of the March 1980 amendment. However, prior to trial plaintiffs decided not to proceed, and final judgment was thereupon entered in favor of all defendants. This appeal followed.

The principal thrust of plaintiffs' challenge to the trial judge's dismissal of their action is that the January 17, 1979 notice of the proposed amendment to the borough's zoning ordinance did not satisfy the requirements of N.J.S.A. 40:49-2.1. Specifically, they claim that the notice in the Daily Register did not constitute a brief summary of the main objectives or provisions of the January 1979 amendment to the zoning ordinances and did not adequately apprise them and other residents of the borough of the substantial zoning change that was planned. We agree and reverse.

Prior to the adoption of the Municipal Land Use Law, zoning ordinances had to be published in full in a locally-circulated newspaper. N.J.S.A. 40:55-34 (repealed by L. 1975, c. 291, § 80, eff. Aug. 1, 1976) and N.J.S.A. 40:49-2. See Dover Tp. Homeowners v. Dover Tp....

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  • Faulhaber v. Township Committee of Tp. of Howell
    • United States
    • New Jersey Superior Court
    • 21 Enero 1994
    ...555, 538 A.2d 362); when a zoning ordinance impacted upon 80% of the undeveloped land within a municipality (Wolf v. Shrewsbury, 182 N.J.Super. 289, 440 A.2d 1150 (App.Div.1981), certif. den., 89 N.J. 440, 446 A.2d 162 (1982)); when a dispute involved a county-wide issue regarding disposal ......
  • Willoughby v. Planning Bd. of Tp. of Deptford
    • United States
    • New Jersey Superior Court — Appellate Division
    • 2 Diciembre 1997
    ...Board of Adjustment of Colts Neck, 299 N.J.Super. 84, 97-99, 690 A.2d 655 (App.Div.1997) (four years); Wolf v. Mayor of Shrewsbury, 182 N.J.Super. 289, 296, 440 A.2d 1150 (App.Div.1981) (one year), certif. denied, 89 N.J. 440, 446 A.2d 162 (1982); Ocean County Bd. of Realtors v. Borough of ......
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    • New Jersey Superior Court — Appellate Division
    • 15 Diciembre 1982
    ...use law include Levin v. Parsippany-Troy Hills Tp., 82 N.J. 174, 411 A.2d 704 (1980) (protest provisions); Wolf v. Shrewsbury, 182 N.J.Super. 289, 440 A.2d 1150 (App.Div.1981) (lack of publication) and Pop Realty Corp. v. Springfield Tp. Bd. of Adj., 176 N.J.Super. 441, 423 A.2d 688 (Law Di......
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    • New Jersey Superior Court — Appellate Division
    • 11 Junio 2018
    ...an enlargement under Rule 4:69-6(c) was justified by the public interest and "[t]he multiple defects of notice"); Wolf v. Shrewsbury, 182 N.J. Super. 289, 296 (App. Div. 1981) (reversing the denial of an enlargement where notice was inadequate). Sunrise cites Rocky Hill Citizens for Respons......
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