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Raskin v. Town of Morristown

Decided: March 21, 1956.


On certified appeal from the Law Division to the Appellate Division of the Superior Court.

For reversal -- Justices Heher, Oliphant, Wachenfeld and Burling. For affirmance -- Chief Justice Vanderbilt, and Justices Jacobs and Brennan. The opinion of the court was delivered by Heher, J. Wachenfeld, J., concurring in reversal, not in the opinion.


The basic issue here is the legal sufficiency of a local zoning regulation adopted June 14, 1954, by way of an amendment to the original ordinance, establishing an "Office Building District," comprising two properties of plaintiffs, that is to say, a large dwelling house on the north-westerly corner of Hamilton Drive and South Street, in Morristown, hereafter to be referred to as "Dwelling House," and a dwelling on the northeasterly corner of the same intersection, to be designated as "Apartment House," and four adjacent parcels of land, the only classification of its kind within the municipality.

The contention is that the particular rule does not comport with the requirements of R.S. 40:55-32 that zoning regulations shall be "in accordance with a comprehensive plan" designed to serve the considerations of "health, welfare and safety of the community as a whole," but was rather the "culmination of a series of small zoning changes, each made at the behest of a property owner or small group of property owners, and was brought about at the instigation of the handful of Hamilton Drive residents to protect and benefit their properties by restricting any development of the Work properties," without "reasonable consideration of the character of the district" and the fact that it "will not conserve property values and encourage the most appropriate use of land throughout the municipality," and so the rule is arbitrary, unreasonable and discriminatory in contravention of constitutional precept, federal and state.

The action is in lieu of certiorari. The proofs were taken before Judge Hall; but the issue was determined by Judge

Hughes under assignment by the Chief Justice, on the full record and his view of the locus in the company of counsel for the parties. The holding was that the "evidence bespeaks the intent at least to plan comprehensively that the Office Building Zone should be a zone of protective screen to help preserve the adjoining residential area"; that "In these days of decentralization of concentrated urban uses (as in the case of light industrial decentralization) a community legitimately may plan to attract from the large cities uses comparable to the office building use," and "As a corollary, it may create, with due regard to the uniformity required by zoning legislation, a district restricted to such use and excluding other business or commercial uses"; that account is to be taken of the "administrative relief from the hardship resulting from comprehensive uniformity in the zone plan" afforded by R.S. 40:55-39, whereby a landowner "suffering hardship from the vicissitudes of change and encroachment is not foreclosed from that remedy and is not remitted for his relief to an attack upon the basic zoning law"; and that the challenged regulation "is a part of the comprehensive zoning plan of the community and has not been shown to be unreasonable, arbitrary or illegal."

Plaintiffs' appeal to the Appellate Division of the Superior Court from the consequent judgment was certified here for decision on our own motion.


It is urged in limine that for want of the procedural due process secured by Article I, paragraph 1 of the 1947 Constitution of New Jersey and the Fourteenth Amendment to the Federal Constitution, the cause should be remanded for a new trial. The specific ground is that the "Judge who rendered the decision was not the Judge who tried the case, and the record discloses no findings of fact, report or statement of conclusions submitted by the trier of the case."

The point is not well made. All the evidence taken was reviewed by Judge Hughes, as the record governing the

formulation of the judgment. The proofs are largely documentary. There is conflict only in the opinion evidence as to the factors touching the reasonableness of the use regulations and the consequences of a commercial use of plaintiffs' properties upon the residential use of Hamilton Drive. As we shall see infra, witness-demeanor does not play a decisive part in the assessment of this testimony. There can be no doubt of the observance of the essentials of due process outlined in Hyman v. Muller, 1 N.J. 124 (1949), invoked by plaintiffs.

R.R. 4:65-1 provides that where "by reason of death, sickness, disability or termination of office, a judge is unable to discharge his duties in any matter, another judge may act in his stead; but if the latter is satisfied that he cannot discharge those duties, he may order a new trial of all or any of the issues, entertain a reargument or, in a case tried without a jury, direct the recalling of any witnesses, or make such disposition of the matter as the circumstances warrant." Under this rule a new trial is in order if that course be in the interest of essential justice; but there is no such showing here.

The case is not within the letter of the rule. But that is of no moment. The principle is the same; and the course taken did not transcend sound discretion. There is no constitutional requirement that in any and all circumstances the power of decision lies only with the judge who heard the testimony. Under the 1844 Constitution, the old Supreme Court en banc heard all certiorari proceedings on testimony taken by a commissioner or master, who made no findings of fact. So also with all other original proceedings before the Supreme Court in which factual issues required the taking of testimony. See Rule 191 et seq. of the old Supreme Court (1938 ed.). Such was the traditional mode of proceeding in the English chancery -- by interrogatories administered to the witnesses either by the regular examiners of the court, or through the medium of commissioners specially appointed for the purpose. Daniell's Chancery Pleading & Practice (Perkin's ed.) 1045, 1053, 1069. See Jackson v.

Jackson's Ex'rs, 3 N.J. Eq. 96 (Ch. 1834). And in modern equity practice, the taking of the testimony of witnesses by deposition had general sanction. See Comp. Stat. 1910, p. 423. But the oral hearing before the vice-chancellor or advisory master was made the general course by rule. Rule 120 of the Court of Chancery (1938 ed.). See also Rule 124.

The 1947 Constitution, Article VI, Section V, paragraph 3, confers upon the Supreme Court and the Appellate Division of the Superior Court "such original jurisdiction as may be necessary to the complete determination of any cause on review"; and there is no suggestion that testimony needed in the exercise of this jurisdiction may be had only by means of a hearing of the witnesses in open court. And by rule the Supreme Court and the Appellate Division, on a review of non-jury cases, may make "new or amended findings of fact," but regard is to be had to the opportunity of the trial judge to assay the credibility of the witnesses. R.R. 1:5-3(a); 4:53-1. See also R.R. 4:88-13, making the same provision on a review of proceedings in lieu of prerogative writs.

The value of witness-demeanor in assessing testimonial trustworthiness depends upon the particular circumstances; it is not a constitutional sine qua non.

Under the 1947 Constitution, the Chief Justice is the administrative head of all the courts; and he may from "time to time transfer Judges from one assignment to another, as need appears." Article VI, Section VII, paragraphs 1, 2.


The amendment is to be assayed, for motivation and purpose, in the context of local zoning history and the supposed need deemed relevant to the exercise of the zoning function. There can be no doubt that the local legislative authority had in view the alleviation of the consequences of prior amendments of the regulations and ill-considered variances contrary to the essential constitutional and statutory principle of comprehensive zoning by districts in furtherance of the considerations justifying the exertion of the power, one or

more, for the common good rather than individual benefit. Indeed, the local authority defends the amendment as a development of "the concept of a buffer area, i.e., an area having certain business characteristics, but also with residential qualities which would separate the general business district from the residential district, and thereby protect the fine residential neighborhood from the heavy traffic, delivery services, piles of rubbish, boxes, etc., common to the rear of ordinary retail stores," and so the "Office Building District" was "part of a comprehensive plan."

The plaintiff Work became the owner of the "Dwelling House" on April 10, 1942. Her mother had acquired the property for her benefit on June 29, 1939, when she was a minor. The plaintiff, herself, purchased the "Apartment House" on April 26, 1944. Shortly before the trial of this action, she contracted to convey both properties to the plaintiffs Raskin and Mackler for the consideration price of $150,000; and after trial was had she made conveyance to the vendees pursuant to the contract, and they were substituted as parties plaintiff.

By the original zoning ordinance of December 21, 1928, in force when the property was acquired by the plaintiff Work, the "Dwelling House" was located in a Residence "A" zone, the highest residential classification made by the ordinance. The adjacent property on the west and all the properties to the rear of the "Dwelling House," and to the east on the same side of South Street and along Madison Avenue, were in residential use, all in the same Residence "A" zone; and on the same side of South Street, to the west of the property adjoining the "Dwelling House," there were several substantial dwelling houses in a Residence "C" zone, a multiple dwelling or apartment house district having a depth of 200 feet. To the west of these residences there was a business district at the intersection of Elm and South Streets, embracing a number of ...

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