Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
Plaintiffs, property owners in the Borough of Freehold, brought this action in lieu of prerogative writ to set aside an amendment to the zoning ordinance of the borough. The Superior Court, Law Division, held the amendment valid. Plaintiffs appeal.
The area rezoned by the amendment, some 26 acres, lies on the outskirts of the borough, adjoining the Township of Freehold. It is roughly triangular in shape, pointed toward the north. One leg of the triangle is State Highway Route No. 33 (which runs from Trenton to Asbury Park); the other leg is partly the borough-township line and partly State Highway Route No. 4 (which according to the record extends from George Washington Bridge to Atlantic City); and the base of the triangle apparently runs along the rear line of properties located on the north side of West Main Street in the borough. The area is owned by the defendant Freehold Racing Association, except for about an acre at the apex of the triangle, which is owned by the defendant Zlotkin.
This triangle may be said to be a segment of a larger integrated triangle, uncrossed by any street, covering 60 acres, 34 acres of which lie in Freehold Township. From one map it appears that the township line seems to cut through a small part of the oval race track itself. The base of this larger triangle is the base of the smaller triangle. The two state highways mentioned form the legs of the larger triangle, and just at the apex is a traffic circle where these and another road or roads converge. Zlotkin owns several acres at this apex, located chiefly in the township, which are contiguous to the land of the Racing Association. His property is largely unimproved, having been used for 35 years in his cattle and hog business and recently (at least in part) for parking autos of those attending the track.
Under the borough's original zoning ordinance adopted in 1924, the rezoned area was placed in a Class A residential district. It remained in this district until the amendment of 1954, challenged here, placed it in a business zone. However,
the oval race track is itself set forth on the 1924 zone map, being then admittedly a nonconforming use in the residential zone. In fact, harness racing has been conducted at this track, it is said, since 1853. It is stipulated that since 1941 the Racing Association has been operating the only harness racing track in New Jersey licensed to conduct pari-mutuel betting. The license permitted betting for a period of 24 racing days a year from 1944 to 1952, and for a period of 50 days a year since then.
In January 1953 the Racing Association requested the mayor and borough council to rezone the area owned by it, so as to constitute it a business zone; a public hearing was held, but the planning board turned down the proposal. Thereafter in April 1953, on application of the Racing Association and after another public hearing, the board of adjustment granted variances to construct an addition to the bleachers, an addition to the grandstand providing club house facilities, a temporary paddock, an enlargement of the office building and of the parking stations. The Superior Court, Law Division, however set the variances aside. An appeal in that cause was brought on for argument before us along with the present appeal, and an opinion therein is filed herewith. 40 N.J. Super. 271.
A few days after the court's oral ruling on the variances, the borough council was again requested by the Racing Association to amend the ordinance (the trial judge apparently suggested this course during the trial of the variance case). Subsequently the amendment now before us was recommended apparently unanimously by the board of adjustment (though its recommendation is not called for by the law), approved by the planning board on May 10, 1954 by a vote of 5 to 2, adopted by the borough council on May 17, 1954 by a vote of 4 to 2, approved by the mayor and then sustained by the Law Division judge who had struck down the variance. Although of little moment in our view of the case, nevertheless it may be mentioned that petitions favoring the proposed change in zone were signed by 2,098 residents of the borough, over a third of the adults in the
community, one of the petitions bearing the signatures of 100 businessmen. Petitions opposing the change were signed by 213 residents.
Our decision here turns on a narrow point. N.J.S.A. 40:55-35, dealing with amendments to a zoning ordinance, provides:
"* * * no amendment or change shall become effective unless the ordinance proposing such amendment or change shall first have been submitted to the planning board, when such board exists, for approval, disapproval or suggestions, and the planning board shall have a reasonable time, not less than thirty days, for consideration and report, and in the case of an unfavorable report by the planning board such amendment shall not become effective except by a favorable vote of two-thirds of the governing body."
Under the terms of this statute, amendments must be submitted to the planning board (at least where there is such a board). Hasbrouck Heights Hosp. Ass'n v. Borough of Hasbrouck Heights , 15 N.J. 447 (1954). But --
"* * * No member of the planning board shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest." N.J.S.A. 40:55-1.4.
Three members of the planning board are charged with a disqualifying personal or financial interest here, and the question is whether this last statute has been violated. In 1953 and 1954 (the board acted on this matter in May 1954) one member was partly responsible for one of the track concessions, namely, the running of the horsemen's kitchen. Asked whether he made any money out of it, he testified
"I wouldn't say so, no, not for the time and effort I put into it."
Beyond question, the implication of this testimony is that he made a little money out of the concession. He therefore may be said to have had a financial interest, to some small extent, in the improvements contemplated by the ...