For the prosecutors, Herman Greenstone (David Cohn, of counsel).
For the respondent the City of Hackensack, Chandless, Weller, Kramer & Frank (Ernest Weller, of counsel).
For the other respondents, George I. Marcus (John J. Breslin, Jr., of counsel).
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
EASTWOOD, J. The writ allowed herein challenges the validity of an amendment to a zoning ordinance adopted by the City of Hackensack on June 2d, 1947, whereby the depth [137 NJL Page 140] of the apartment house zone along a public street known as the Esplanade was increased from 150 feet to approximately 350 feet; and further seeks to have declared void the modification of certain building restrictions by the city embodied in a contract entered into between the city and the respondent Fred Ingannamort under date of April 14th, 1945, by the adoption of a resolution on July 7th, 1947. The restrictions in the contract of April 14th, 1945, limited construction on the lands to single-family dwellings. As modified by the resolution of July 7th, 1947, Ingannamort was permitted to construct what are known as garden apartments, which may be styled as multiple-family dwellings. Prosecutors are the owners of single dwellings on the tract of land in question, the same having been constructed in accordance with restrictions in their deeds permitting that type of construction only and further providing a fixed minimum amount for the cost of construction. It does not seem to be disputed that the single-family dwellings restriction was applicable to the lands in question; that the city sold said lands at public sale to respondent Fred Ingannamort at which sale the single-family dwelling restriction and other restrictions were publicly announced as part of the conditions of sale, and that at the time of sale the lands were within the zoning restriction permitting only single-family dwellings. It is urged by the prosecutors that, if it had been made known that the restrictions were later to be abandoned and apartments permitted to be constructed, it is probable that there would have been other bidders who might conceivably bid even a larger sum than that bid by the successful bidder, the respondent Ingannamort. Prosecutors also allege that the action of the governing body of the City of Hackensack was prompted by some ulterior motive in modifying Ingannamort's contract and the adoption of the amendment of the zoning ordinance. These allegations are, of course, denied by the respondents who in turn claim that the action of the City of Hackensack was entirely proper and for the best interests of the municipality; that the building restrictions were properly relaxed; that the modification of Ingannamort's contract to permit the construction of garden apartments was in the interest of the public welfare;
and that in any event the prosecutors are in laches, in not diligently seeking to challenge the action of the city in adopting the zoning amendment and the resolution modifying Ingannamort's contract until November 12th, 1947, the date of the allocatur.
Prosecutors advance three grounds in support of their contention that the action of the City of Hackensack, under review here, is illegal and should be set aside, viz.: (1) the resolution of July 7th, 1947, is an illegal action, contrary to the statute and deprives prosecutors of vested rights and impairs contractual obligations; (2) the resolution of July 7th, 1947, is illegal, in that it created special rights and privileges to the respondent Fred Ingannamort, contrary to public advertisement and public sale and contravenes the statute; and (3) the City of Hackensack was without authority to change the contract between it and respondent Ingannamort by adoption of the resolution and/or amendment to the zoning ordinance.
It will be noted that, in point of time, the first municipal action sought to be reviewed is the amendment of the zoning ordinance of June 2d, 1947. It is well established by the decisions of our court that the governing body of a municipality may amend its zoning ordinance any time it deems circumstances and conditions warrant such action and such an amendment is unqualifiedly valid, if the procedural requirements of the statute are complied with; and providing such amendment is not unreasonable and capricious and is in furtherance of the design of the zoning statute. We are of the opinion that the prosecutors, upon whom the burden falls, in attacking this amendment, have utterly failed to establish that the zoning amendment was unreasonable and capricious, or that its passage was not in conformity with the statute. In fact, prosecutors fail to discuss this point in their brief. We hold that said amendment of the zoning ordinance is valid and enforceable and is dispositive of the issues sub judice.
Under Point (3) of prosecutors' brief, they argue "The City of Hackensack was without authority to change the formal contract entered ...