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Zell v. Borough of Roseland

Decided: October 15, 1956.

ALICE SWAIN ZELL, ET AL., PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF ROSELAND, THE HALF DIME SAVINGS BANK, THE ROSELAND METHODIST PROTESTANT CHURCH, ET AL., DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.

Conford

[42 NJSuper Page 77] This action was brought by residents and property owners of Roseland in the Law Division to review an ordinance adopted July 12, 1955 amending the zoning ordinance of the Borough of Roseland originally adopted May 13, 1952. The basis of our determination of this appeal leaves it unnecessary to discuss the factual background in detail. It will suffice to summarize. The general effect of the amendment is a revision of the boundaries of the central business district of the borough, retaining the general location of the district in and about Eagle Rock Avenue, between Livingston Avenue and Roseland Avenue, but relegating part of the district to a residential status and adding some residential territory to the district. The principal accretion of residential property to the business district under the revision and the real bone of contention in this litigation is an aggregation of four lots in and about the northeast corner of Roseland Avenue and Eagle Rock Avenue. The largest of these lots, with a frontage of 260 feet on Roseland Avenue and 200 feet on Eagle Rock Avenue, is property of the defendant, Roseland Methodist Protestant

Church, the site of its parsonage, a one-family residence. The church itself is situated on the north side of Roseland Avenue, several hundred feet east of the parsonage and within the same block.

The record before us leaves no doubt that the proceedings culminating in the adoption of this ordinance were initiated by the application of the church and of counsel for the defendant, the Half Dime Savings Bank, holder of an option for the purchase of the parsonage property for intended use for banking purposes, "for an amendment to the borough zoning ordinance to change the zone" of an area inclusive of the parsonage site "from the residence district to the Business district." A letter dated January 18, 1955 from counsel for the purchaser to the planning board of the municipality frankly avowed the object of the application, without specifying the identity of the purchaser.

The letter was read at a meeting of the planning board on February 1, 1955, and objection was expressed to opening the block to "general business," but the idea of a bank on the property was received favorably. It was decided to suggest that the applicant apply for a variance before the board of adjustment. At the next meeting of the planning board, February 3, 1955, the secretary advised the board that, upon advice of the borough counsel, he had not sent the authorized communication to the applicant, and he suggested that the board meet informally with the trustees of the church and a representative of the purchaser. Mr. Diecks, a member both of the board and of the church, undertook to arrange such a meeting, which took place February 24, 1955. Later discussions of the project included members of the borough council. There was some dissatisfaction over the fact that the bank planned to begin banking operations on a trial basis in the existing residence structure. Nevertheless, plans for the zone revision went forward, and the borough's planning expert, Mr. Boyd, was consulted.

On May 4, 1955 the chairman of the planning board wrote the mayor and council recommending, in substance, the zone revision later effected, and giving two reasons: first, a

previously projected extension of Livingston Avenue, apparently planned as the westerly boundary of the business district, appeared to be indefinitely postponed, and it was, therefore, felt that "zoning boundaries should conform to a more realistic concept"; second, the proposed change would make "possible the sale of this land [parsonage site] to the Half Dime Savings Bank of Orange for use as a branch."

At a special meeting of the planning board on June 21, 1955 it approved a draft of the revision ordinance, and the resolution of approval was sent to the council. On June 28, 1955 the ordinance was passed by the council on first reading, and, after public hearing on July 12, 1955, it was passed on final reading.

At the trial in the Law Division the ordinance was attacked primarily on the grounds that it constituted spot zoning and was not adopted "in accordance with a comprehensive plan," as required by R.S. 40:55-32. But the plaintiffs also subpoenaed Mr. Diecks, a planning board member, as noted above, and Mr. Ebersbach, a member both of the planning board and council, to testify concerning their "self-interest" in the subject matter of the ordinance. Counsel for the defendants objected on the ground that self-interest was not an issue in the case under the pretrial order and informed the court that he had therefore instructed the witnesses not to be present. Plaintiffs thereupon asked that the pretrial order be amended, informing the court that both Diecks and Ebersbach were members of the defendant Roseland Methodist Protestant Church, and calling its attention to the statute governing planning boards, N.J.S.A. 40:55-1.4 (L. 1953, c. 433, p. 2170, ยง 4), which provides that:

"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."

The trial court refused to allow an amendment of the pretrial order to set up the issue. ...


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