William A. Smith, A.j.s.c.
This is an action in lieu of prerogative writ in reference to zoning and involves the determination of the action on the second count. The first count has been disposed of by a previous determination by the court. The counts were not, insofar as causes of action and specific property are concerned, related, except that they are brought by the same plaintiffs property owners and against the defendant Township of Long Beach. The defending property owners are different and the causes of action are not the same.
Long Beach Island is a long, narrow island running from Barnegat Inlet to Beach Haven Inlet and is bounded on the east by the Atlantic Ocean and on the west by Barnegat Bay. The entire island was originally governed by the Township of Long Beach, but as the properties on the island had been developed separate municipalities have been carved out of the Township of Long Beach, leaving separated sections or segments of land still governed by the defendant township. One of these sections is known as Loveladies, which lies just south of the Borough of Barnegat Light and north of the Borough of Harvey Cedars; it contains about 1,000 acres and is about two miles long. It is more or less in its native state as far as development is concerned, with the exception that the boulevard extends through it from north to south. The section is practically entirely zoned for residential purposes and the particular section which we are dealing with has only 34 residences erected before 1950 and 31 more since that time.
The property of the plaintiffs is located on the east side of the boulevard and runs through to the Atlantic Ocean. The property of the defendants Laslocky is directly opposite that of the plaintiffs and fronts on the west side of the boulevard, extending back well over 400 feet.
The first cause of action had to do with property belonging to the defendants Taylor, which was within 100 feet of
the plaintiffs' property and separated only by a narrow street; it was formerly the Coast Guard Station and was converted to residential purposes. The action was brought to set aside a variance granted to the Taylors for business purposes and the proceedings were set aside and judgment entered for the plaintiffs, resulting in its continuance in residential status.
The second cause of action involves the validity of an amendment to the zoning ordinance. The plaintiffs as property owners ask that an amendment to the zoning ordinance be declared invalid. The original zoning ordinance was passed June 3, 1949, and except for the property of the Long Beach Foundation the entire section was zoned for residential purposes, excepting for provisions for churches, parish houses, schools, public libraries, public museums, art galleries and telephone exchanges. On May 9, 1950, an ordinance known as Number 174 (Exhibit P-4) was published, which was an ordinance amending the zone; it was again published on May 16, 1950, and was finally passed on May 19, 1950. The amendment carved out a piece of property fronting on the west side of the boulevard opposite the plaintiffs' property, consisting of the property of the Long Beach Foundation, with a frontage of 806 feet, next to a lot owned by the defendants Laslocky, having a frontage of 125 feet, and a piece of property adjoining the Laslocky's property on the south, having a frontage of approximately 500 feet. This last piece of property was owned by the Township of Long Beach. All of the property contained in the amendment had a depth of 400 feet and by the amendment was made into a business zone. It consisted of a frontage of 1,250 feet and contained approximately 11.2 acres. The amendment to the zoning ordinance was authorized by the statute, N.J.S.A. 40:55-35, which provides in part as follows:
"In case of a protest against such proposed change signed by the owners of twenty per centum (20%) or more either of the area of the lots or land included in such proposed change, or of the lots or land in the rear thereof extending one hundred feet
therefrom, or of the lots or land on either side thereof or directly opposite thereto extending one hundred feet therefrom (exclusive of street space), such change shall not become effective except by the favorable vote of two-thirds of all the members of the governing body or board of public works of such municipality." As amended L. 1948, c. 305, p. 1222, sec. 4.
The provisions of this section were not invoked against the passage of the amending ordinance. The plaintiff husband in this action says that he did not know of the passage of the amending ordinance until July 1950, about two months after its passage. The Laslockys, on the passage of the ordinance, commenced the construction of a commercial building which was completed in August 1950, and opened as a milk bar serving refreshments and selling products to be carried out; since its opening it has continued to operate as a milk bar. The plaintiff admits that he knew in July of the construction of the building referred to, when it was about three-fourths completed, but says he thought it was a residence. On July 18, 1952, approximately two years after the plaintiff knew of the passage of the amending ordinance, the plaintiffs instituted this action, alleging that the amending ordinance was an example of spot zoning and was, therefore, illegal and invalid.
There can be no question but that one of the motivating causes of the passage of the amending ordinance was the desire on the part of the Long Beach Foundation to have a nearby place where light refreshments could be served. Dr. Blai, the head of that institution, contended that the milk bar was a necessity to the institution and, undoubtedly, he interested the Laslockys in the construction of the milk bar which was completed in August, 1950. The defendants Laslocky both testified that they first knew of the plaintiffs' objection to the ordinance, the erection of the building and conducting the business, on the starting of this suit. The mayor of the township testified and claimed that the passage of ...