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Bogert v. Township of Washington

Decided: April 8, 1957.

HOWARD D. BOGERT, JOHN J. BOGERT AND M. CATHERINE DWYER, PLAINTIFFS-APPELLANTS,
v.
THE TOWNSHIP OF WASHINGTON, A MUNICIPAL CORPORATION EXERCISING ITS FACULTIES IN THE COUNTY OF BERGEN AND STATE OF NEW JERSEY, PURSUANT TO THE AUTHORITY OF THAT STATE, DEFENDANT-RESPONDENT



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d. Francis, J.A.D. (dissenting).

Clapp

[45 NJSuper Page 14] This action was brought in the Superior Court, Law Division, to set aside a supplement to the zoning ordinance of the Township of Washington. The supplement upgrades a certain area, including land of the plaintiffs, from an AA residential district to a newly-established AAA residential district. The action of the township was sustained by Judge Leyden, and plaintiffs appeal.

Washington is a small community, zoned entirely for residential use, except for a tiny area at the center left for retail business. Plaintiffs' property consists of 18 acres of undeveloped land, the southerly three-fourths of Block 1202 (for all references to the area in question, see the very useful map inserted by Judge FRANCIS in his dissenting opinion). Under the supplemental ordinance, lots in the new AAA district are to have a minimum area and frontage of one acre and 150 feet respectively; whereas in the AA district the minimum area and frontage are a half acre and 100 feet.

A strange aspect to the case is, as indicated in plaintiffs' brief, that it "is not the profit motive," which induces them to maintain the action. In fact, they say they "actually have no quarrel with the creation of a one acre zone * * *," but are of the view that the township, as a matter of law, was obliged to take one of two courses: either Blocks 1203, 1204 and 1301-1303 should have been included in the one-acre zone (that is, the AAA district) along with the above-mentioned Block 1202; or Block 1202 should have been left with these five blocks in the half-acre zone, namely, the AA district. Which the township should have done, is to the plaintiffs a matter of indifference. Nevertheless, they claim to have been discriminated against; whether their grievance is of a financial sort or of some other nature, or whether it verges upon the theoretical, is all left to conjecture. However, the point is not raised, and we pass it by.

Plaintiffs make some note of the fact -- not as a suspicious matter, but as indicative of a lack of study on the part of the township -- that the five blocks above-mentioned were made a part of the AAA district under the supplemental ordinance as it was originally introduced; but that on the day it was introduced, the township committee, approving the subdivision of a lot in Block 1302 (one of these five blocks), authorized three lots to be created, each less than one acre. The fact is, of course, that under the ordinance as passed , this block was brought within the half-acre zone, and the initial inconsistencies were resolved. That seems

not to be a matter of major significance. Nor do we think that plaintiffs can make much of the fact that the new AAA zone comprises only 2% of the total area of the township. Spot-zoning cannot be reduced to a matter of mathematics. Further as to spot-zoning, see Gartland v. Maywood , 45 N.J. Super. 1 (App. Div. 1957).

We turn, then, from these rather minor matters to the major premise underlying plaintiffs' argument, namely, that the center of a certain street, Van Emburgh Avenue, running north and south, which slices off 112 acres on the northwestern corner of the township, plainly constitutes a natural boundary for the AAA zone, if such a zone is to be set up. Upon this premise they rest their contention that any failure on the part of the township to give like treatment to all property located within this slice is unreasonable, arbitrary and capricious. The governing principles here have been stated many times, most recently by this Part of the Appellate Division in Gartland v. Maywood, supra. They need not be repeated. The question is simply whether the municipal action taken here is manifestly unreasonable.

The premise stated is one which is most difficult to sustain. Bassett, discussing the subject of boundaries for zoning districts, declares that ordinarily the boundary should run, not down the center of the street, but at a standard distance back from the street line. Bassett, Zoning 95 (1936). Yokley says that to constitute a street or avenue the boundary line will, unless great care is exercised, give the municipal attorney a "legalistic migraine." Yokley, Zoning Law and Practice ยง 58 (1953). See further, Appley v. Township Committee of Township of Bernards, Somerset County , 128 N.J.L. 195, 198 (Sup. Ct. 1942), affirmed 129 N.J.L. 73 (E. & A. 1942); Scarborough Apartments, Inc., v. City of Englewood , 9 N.J. 182, 188 (1952); and see also Conlon v. Board of Public Works of City of Paterson , 11 N.J. 363, 371 (1953), pointing out that "zoning one side of a street for purposes different from those prevailing on the other side is not per se illegal," though "doubtless better reasoned planning theories favor the same use zoning

on both sides of a street." As the cited cases indicate, it by no means follows that a court will interfere with a zoning amendment which fails to follow the "better reasoned planning theories" and lays the boundary line of a district along the center of a street; but here we are asked to set aside an ordinance, as arbitrary and capricious, because the township largely accepted the more approved theories and ran the boundary line along the rear of the properties (other than Block 1301, which we will deal with later) fronting on Van Emburgh Avenue.

A colloquy below between court and counsel illustrates the point sharply. Plaintiffs' counsel said he would not want to build a $60,000 home on a one-acre lot which backed up on a half-acre lot; but, he suggested, he would feel differently if the more modest place were across the street. But would he? Are we to say that there was a manifest abuse on the part of the township because it did not accept this dubious theory of the plaintiffs?

A further study of the matter only confirms the impression that the failure to place the boundary of the district along Van Emburgh Avenue was not manifestly unreasonable. The AAA district, including plaintiffs' property, abuts upon Hohokus. The adjoining lands of Hohokus may be said to be in a residential district of even a slightly higher class than Washington's AAA district; for lots in this part of Hohokus must, according to the zoning ordinance there, have a minimum area of one acre and a minimum frontage of 200 feet. (As may be gathered from the map referred to) plaintiffs' property, the southerly three-fourths of Block 1202, is landlocked except for a so-called right of way (owned in fee by them), 50 feet wide, running into Washington Avenue along the Hohokus line or not far from it, practically a projection of Wearimus Road. Washington Avenue, which runs east and west into the Borough of Hohokus -- when it is taken with Wearimus Road to the north and this right of way to the south -- draws the whole AAA district into the environment of Hohokus. The right of way was recently acquired by the plaintiffs along the

Hohokus line, apparently with the very purpose of bringing their property as close as possible to this environment. Moreover, as one of the plaintiffs indicated below, there is a chance that the land in Hohokus immediately contiguous to theirs may be developed, thus tying their property very directly into the Hohokus community with cross streets. In any event, plaintiffs' property is not located on Van Emburgh Avenue, nor is there a road from their property running directly to it.

Unlike plaintiffs' property, Blocks 1203, 1204 and 1301-1303 (the five blocks which plaintiffs claim should, as a matter of law, be treated in the same fashion as their property) all front on Van Emburgh Avenue or, as is the case with 1301, have access to it through adjoining property. Block 1301 has access to no other road. It is to be observed that there are no streets running from any of these five blocks directly to the Hohokus area. Of the houses in the five blocks, two are roughly valued by plaintiffs' expert witness at $24,000 to $31,000, and eight or ten, including the two in Black 1301, are valued at $16,000 to $23,000. We are left with the impression that these 10 to 12 houses, generally speaking, are more modest than the 13 in the AAA district and those which, it is expected, will be attracted to the undeveloped land in that district. We are not informed as to the character of Van Emburgh Avenue north of Washington Avenue, but we are informed that there is a very handsome home on Washington Avenue, which recently sold for $70,000 and which, with plaintiffs' very property, makes up Block 1202. Counsel also told the trial court, without objection, that another home in the AAA district is worth $75,000-$80,000, and there are apparently other somewhat expensive homes there. Nearly half of the land in Blocks 1101 and 1201 has already been developed, and its character has thus been somewhat formed. It is not without significance that 17 of the 25 lots which compose the above-mentioned five blocks as the blocks are now subdivided, are each less than one acre. On the other hand, a witness for the plaintiffs said that of the 23 properties

in the AAA district, 20 are over an acre and the remaining three nearly an acre (.88, .95, .96 of an acre). The nature of existing uses in a district and the marked tendencies therein should of course be reckoned with, when revising a zoning plan.

The plaintiffs' property is wooded and neither subdivided, nor in any way developed; and, as indicated at the argument, there is apparently no present prospect of development. It consists of a large hill, with a "plateau area" on top, the most prominent landmark in that part of the township. Defendant says that all the lands located in this district constitute ideal locations for valuable homes, on the lots provided for in the supplemental ordinance.

It certainly does not seem to have been clearly unreasonable for Washington to have failed to upgrade the more modest properties fronting on or having access to Van Emburgh Avenue -- that is, the five blocks plaintiffs refer to; nor do we think it clearly unreasonable for it to have included plaintiffs' land in the AAA district. In our view, plaintiffs have failed to carry the burden of proof resting upon them. When an attack is made upon an amendment to a zoning ordinance involving questions as to local policy, the courts -- merely because they have other preferences in the matter -- are not at liberty to reject those of the chosen representatives of the municipality.

Affirmed.

FRANCIS, J.A.D. (dissenting).

On September 13, 1955 the governing body of the Township of Washington, by a supplement to its 1941 zoning ordinance, created an AAA residence district in the northwest corner of the municipality which upgraded the required lot size to one acre with a minimum frontage of 150 feet. Previously the area had been in a zone designated AA which called for one-half acre lots and a minimum frontage of 100 feet. Plaintiffs are owners of an undeveloped wooded tract of 17.94 acres encompassed by the supplement; it has been in their family for over 150 years. In this prerogative writ proceeding

they have attacked the supplement as unreasonable, arbitrary and discriminatory, and as an invalid exercise of the zoning power. The trial court found against them and we are asked to review that judgment.

Washington is a small residential community in Bergen County with a population of 3,569 persons. It is 3,200+- acres in area and, except for a small square of a few blocks in the heart of the township which is set apart for retail business, it is zoned entirely for residence; there is no industrial or commercial zone. There is no sewer system and no paid fire department.

The original zoning ordinance was adopted September 9, 1941. Two zones were established, both residential; A covered about two-thirds of the township, including plaintiffs' land, called for minimum frontage of 100 feet and a lot area of not less than 10,000 square feet; and B, the remainder, which required minimum frontage of 50 feet and an "area governed by depth of property shown on any map now on file at the County Seat." No provision was made for industrial, commercial or retail business use.

On November 9, 1949 (after some earlier changes which need not be discussed), an amendment was approved which placed all but a small portion of the western half of the community in an AA zone. This alteration, which affected plaintiff's tract, fixed ...


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