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Bogert v. Township of Washington

Decided: October 7, 1957.


On appeal from the Superior Court, Appellate Division, whose opinions are reported in 45 N.J. Super. 13.

For affirmance -- Chief Justice Weintraub, and Justices Oliphant, Wachenfeld, Burling and Jacobs. For reversal -- Justice Heher. The opinion of the court was delivered by Oliphant, J. Mr. Justice Heher votes to reverse for the reasons expressed in the dissenting opinion of Judge Francis in the Appellate Division of the Superior Court.


[25 NJ Page 59] The appellants brought an action in lieu of prerogative writ to set aside a supplement to the zoning ordinance of the defendant township on the ground that the regulation was unreasonable and arbitrary in its classification of the lands of the appellants. The appellants are tenants in common of some 17.94 acres of land, constituting

the southerly three-quarters of Block 1202, situated in the northwest corner of the township. After a trial of the issues, Judge Leyden sustained the ordinance and judgment was entered in favor of the respondent township. On appeal to the Appellate Division this judgment was affirmed by a divided court. Bogert v. Washington Township, 45 N.J. Super. 13 (App. Div. 1957). Since there was a dissent in that court, this appeal is here as a matter of right. 1947 Const., Art. VI, sec. V, par. (1)(b). R.R. 1:2-1(b).

The supplement of the ordinance upgraded a certain area, including the lands of the appellants, from an AA Residential District to an AAA Residential District. In an AA residential district, the supplement required a minimum area of one-half acre and a frontage of 100 feet; in an AAA district the minimum area required is one acre and 150 feet frontage.

Washington Township is a small community, of about 3,200 acres, and is zoned almost exclusively for residential use with the exception of a small area allotted to retail businesses. The original zoning ordinance, adopted in 1941, divided the township into two districts designated A and B. About two-thirds of the community was in district A, which had a minimum lot requirement of 10,000 square feet and a frontage requirement of 100 feet per lot. In 1949 a major change was made in the requirements by creating an AA district with the minimum of one-half acre and a frontage of 100 feet. Appellants' property is in this zone.

The location of the appellants' property with regard to other properties involved in this problem will appear in clear prospective by reference to the map published in the minority opinion of the Appellate Division, Bogert v. Washington Township, supra, 45 N.J. Super. at page 21. The appellants' property, together with the other properties in this area, are bounded on the north by the Borough of Hillsdale, by the Borough of Hohokus and the Village of Ridgewood on the west, by the Borough of Paramus on the south, and on the east by Van Emburgh Avenue, a heavily traveled county road, established and laid out many years ago.

As initially proposed, the supplement ordinance placed all of the property in the triangle south of Washington Avenue in the AAA classification, but after hearings the supplement was amended and Blocks 1203, 1204, 1301, 1302 and 1303 were removed from the AAA district.

The fact that Block 1202 is the only block south of Washington Avenue retained in the AAA classification constitutes the gravamen of the appellants' complaint. The essence of the controversy is whether there is any substantial, rational or reasonable basis for placing the land of the appellants in the AAA classification and Blocks 1203, 1204, 1301, 1302 and 1303 in the AA classification.

A community is not required to select the best of all possible classifications, but the classification must be reasonable, without arbitrary discrimination, and made with the intent to provide for the best interests of all the community in the foreseeable future. It is basic to a zoning policy that all property in like circumstances is to be treated alike, and the restraints on the uses of property must be general and uniform in a particular district. The essence of zoning is a territorial division in consonance with the character of the lands and structures and their peculiar suitability for particular uses, and uniformity of use within the division. Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405 (1952); Raskin v. Town of Morristown, 21 N.J. 180, at page 192 (1956).

Zoning involves more than looking at a map and drawing what appears to be logical or natural boundaries. It is more than an exercise in plane geometry. The mere observation of a plat map, tax map, or zoning map will lead to misleading abstract deduction and error in the application of the above stated principles. Cf. Leimann v. Board of Adjustment of Cranford Tp., 9 N.J. 336, 346 (1952).

There are many considerations which may validly apply to influence the way property in a district may be classified. Important among them are the prior existing uses in the district, the natural contours and topographical ...

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