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Stirling v. City of Plainfield

Decided: June 27, 1947.

RUTH E. STIRLING AND NORMAN W. STIRLING, HER HUSBAND, PROSECUTORS-RESPONDENTS,
v.
CITY OF PLAINFIELD, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT



On appeal from the Supreme Court, whose opinion is reported in 134 N.J.L. 485.

For the appellant, Salvador Diana.

For the respondents, Carroll W. Hopkins.

Mcgeehan

The opinion of the court was delivered by

McGEEHAN, J. The question raised by this appeal is whether a zoning ordinance of the City of Plainfield was validly enacted.

A zoning ordinance (Revision of 1933) was in effect in Plainfield when, on October 1st, 1945, a revised zoning ordinance was introduced for the first time, read and passed on first reading. On October 15th, 1945, the date set, a public hearing was held, at which time various objections were made to the ordinance as published; whereupon, by resolution, the public hearing was continued to November 5th, 1945. At the

public hearing on November 5th, 1945, a resolution was passed to amend the zoning ordinance under consideration. Among other changes, the amendments changed the classification of Block No. 1 from a "B" to a "D" residential zone. At a public hearing on November 19th, 1945, the zoning ordinance as amended was adopted by the Common Council, and on November 20th, 1945, was approved by the Mayor and thereafter duly published according to law. The ordinance introduced on October 1st, 1945, and the notice of the public hearing set for October 15th, 1945, were published on October 3d, 1945, in the Plainfield-Courier-News. The ordinance as amended on November 5th, 1945, and the notice of the public hearing set for November 19th, 1945, were published in the same newspaper on November 14th, 1945. Thus, the ordinance as introduced was published twelve days, and the ordinance as amended five days, before date set for hearing thereon.

The prosecutor below contended and the Supreme Court held that the ten day or more publication period mentioned in R.S. 40:55-34 applies not only to a zoning ordinance as introduced, but also to any amendment thereof made in the course of passage. Since publication of the ordinance as amended had been for only five days, the Supreme Court held it had not been validly enacted. In this the Supreme Court erred.

The procedure for the passage of municipal ordinances is set forth in R.S. 40:49-2, which appears in the Revised Statutes under the subtitle "Municipalities Generally" and the article title "Ordinances Generally." All municipal ordinances must comply with this procedure, except in so far as this procedure is changed in whole or part by other sections of the Revised Statutes or by statute enacted after the adoption of the Revised Statutes.

We think the legislative intent would be frustrated if we were to find in a particular enactment any change in the procedure provided in R.S. 40:49-2 for the passage of municipal ordinances which the language of the particular enactment does not clearly require.

As to publication and hearing, R.S. 40:49-2 ...


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