Decided: May 21, 1940.
RUSSELL B. PHILLIPS ET AL., PROSECUTORS,
TOWNSHIP COUNCIL OF THE TOWNSHIP OF TEANECK ET AL., DEFENDANTS
On writ of certiorari.
For the prosecutors, Davies & Davies.
For the defendants, Donald M. Waesche.
Before Justices Case, Donges and Heher.
[125 NJL Page 78]
By this writ of certiorari the prosecutors attack an ordinance of the township of Teaneck, claiming that in so far as it affects their property it is unreasonable, capricious and arbitrary. The factual situation is outlined in an opinion of the Supreme Court, which set aside a previous ordinance of like import, reported at 120 N.J.L. 45. The Court of Errors and Appeals affirmed, 122 N.J.L. 485. Both ordinances were amendments to the zoning ordinance, the prior one dealing only with a district in which prosecutors' property is located, and the one now under review making the same change in that locality as well as other changes in other parts of the township. The change affecting prosecutors is the attempt to put their property in a Class "C" residence zone, whereas it had previously been in a business zone.
It was admitted by one of the defendants' witnesses, and not otherwise denied, that there has been no change in the physical situation respecting prosecutors' property since the determination of the earlier case. It is charged in prosecutors' brief that the factual situation is the same, and this is not denied, in fact it was admitted by counsel at the oral argument.
In this situation, we are of the opinion that the prior determination is controlling here. That litigation is res adjudicata on the question of the reasonableness of zoning prosecutors' property for residence purposes in the factual situation presented. Admittedly there has been no change. The questions here presented have, therefore, been determined adversely to the defendants, and the ordinance must be set aside in so far as it affects the property of the prosecutors, with costs.