Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
This appeal concerns the validity of an ordinance amending the zoning ordinance of the Borough of Roseland. A number of citizens and taxpayers initiated the challenge by procedure in lieu of prerogative writ. The Law Division sustained the municipal action.
Roseland is a small suburban community in northwest Essex County, of about 2,300 acres and with a population of about 2,200 persons. It is conceded in respondents' brief that Henry Becker & Son, Inc. (of which Henry E. Becker has majority stock ownership) owns about 1,100 of these acres.
On May 13, 1952 the borough adopted a zoning ordinance which established five use districts: Residence No. 1, Residence No. 2, Residence No. 3, Retail Business and Light Industrial. The Light Industrial zone consisted of 275 acres, of which about 100 acres have not yet been put to that use. That this remaining portion is suitable and entirely adaptable to the purpose is not questioned. The Becker interests own 90 of these unused acres and over half of the remaining vacant land.
Prior to the change in the ordinance which gave rise to this litigation, Henry Becker & Son, Inc., requested a rezoning of five of its acres to industrial use. The planning board declined to approve it on three occasions. On appeal following the last attempt the council, apparently largely upon advice of counsel that it would be considered spot zoning, sustained the board but (according to the minutes) referred back to the board the question of the suitability of zoning the "general location for residential use * * * with the recommendation of the Mayor and Council that the entire area be rezoned for industrial use." The formal resolution dated October 12, 1954, was not as strongly worded. It resolved that the board "seriously consider rezoning the entire area of similarly situated property in this general location from residential to industrial use."
On October 19 the planning board met and discussed the resolution. The minutes indicate that Councilmen Hilton
and Leonard "were present and joined in informal discussion of the question."
On October 29, after further consideration, the board decided to request the council "to more fully define the area in which they wish a reconsideration of the zoning." Upon receipt of the request, a meeting of the council was had November 9, at which time Councilman Hilton moved that an executive meeting be held on November 16 and that "Mr. Becker be invited to attend, in order to get clarification on this property involved * * * and also to have Mr. Becker present any further plans on rezoning that he may have in mind in the Borough * * *."
At the council session of November 16 the mayor explained to Mr. Henry ("Gene") Becker why he was asked to attend. Becker said he "was reluctant" to seek rezoning for more than the five acres involved in the application which had been rejected as spot zoning "because he doesn't need it." But he thought "the Borough should do what they see fit to get away from spot zoning" and he would offer "no objection to any additional rezoning in the area." Then he outlined the further changes in zoning he had "in mind for the Borough."
The planning board convened on December 7 and took up the matter. At this time, according to the minutes, "a marked blue print of the present zoning maps indicated further areas of Mr. Becker's property that he would like to see rezoned." After studying "Mr. Becker's map" some views were expressed regarding the suggested changes, but it was decided that the "extended proposals" should be discussed at a public hearing to be held on January 4, 1955.
Following this public hearing the board recommended the additions to the industrial zone which were subsequently adopted by the council through the amendatory ordinance now under attack. All of the land rezoned except for approximately ten acres is owned by the Becker interests. Concurrently with the recommendation the board unanimously recorded "its considered opinion that these are the ultimate extensions of the industrial zone."
The amendatory ordinance incorporating the suggestions of the planning board was drawn by the borough attorney. It was submitted thereafter to the planning board and approved as required by N.J.S.A. 40:55-35.
At the public hearing conducted by the council on the amendatory ordinance a citizen suggested that since Councilman Leonard is an employee of Henry Becker & Son, Inc., it would be unethical for him to vote on the question and requested his abstention. A similar challenge was interposed by a member of the planning board in connection with the earlier appeal by Becker to which reference has been made. Leonard did not withdraw on either occasion. He voted in favor of adoption of the ordinance, although neither his vote (nor that of Councilman Hilton, to be discussed hereafter) was necessary for passage. See Pyatt v. Mayor and Council of Dunellen , 9 N.J. 548, 557 (1952).
The record reveals without dispute that Councilman Leonard is employed by Henry Becker & Son, Inc., as cashier in general charge of routes and office manager; he has worked for the company for 23 years.
Councilman Hilton is the owner of substantially all of the stock of Cocalico Poultry Farms, Inc., which packages eggs for the Becker company. The eggs are sold in containers which bear the legends "Distributed by Henry Becker & Son, Inc." and "Packed by Cocalico Poultry Farms, Newark, New Jersey."
On this appeal the amendatory ordinance is said to be void because of the participation of Leonard and Hilton in the municipal adoptive action, and because it represents an unlawful exercise of the zoning power of the borough. In our judgment, only the first ground need be considered.
A public office is a public trust. Borough councilmen, as fiduciaries and trustees of the public interest, must serve that interest with the highest fidelity. The law tolerates no mingling of self interest; it demands exclusive loyalty. Driscoll v. Burlington-Bristol Bridge Co. , 8 N.J. ...