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Wollen v. Borough of Fort Lee

Decided: June 25, 1958.

ROSS WOLLEN, GRACE F. WOLLEN AND MARY BOHRMANN, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF FORT LEE AND MAYOR AND COUNCIL OF THE BOROUGH OF FORT LEE, DEFENDANTS-RESPONDENTS



On certified appeal from the Law Division to the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Heher, J.

Heher

[27 NJ Page 410] At issue in this proceeding in lieu of certiorari is the validity of an ordinance adopted March 6, 1957 purporting

to amend and supplement the zoning ordinance of the defendant Borough of Fort Lee. The amendment would reduce the land area of district R-1A, restricted to one-family residence use and a "minimum lot area" of 10,000 square feet, and constitute the separated land a new R-7 Multi-Story Apartment District open to apartment houses not in excess of six stories in a given area and not in excess of 14 stories and penthouse elsewhere in the district.

There was judgment for defendants; and we certified, sua sponte, plaintiffs' appeal to the Appellate Division of the Superior Court.

The history of the measure now under attack is pertinent to the inquiry. As first proposed, January 2, 1957, the subject lands comprised approximately 44 acres, known as the Palisade East tract. The proposal came from the board of liquidation established by the borough under R.S. 52:27-45.3 to effect a plan of composition of the debts of the borough and the School District of Fort Lee, presented in proceedings brought by the borough in the United States District Court for the District of New Jersey under chapter IX of the Bankruptcy Act, 11 U.S.C.A. ยง 401 et seq., and to that end "to effect, manage and control the liquidation of the assets thereby pledged to the Liquidating Fund in a speedy, efficient and economical manner," and to "compromise, adjust or otherwise settle any certificates of tax sale or tax and assessment title liens, or other receivables included in the assets," and to foreclose certificates of tax sale or tax and assessment title liens included in the assets, and to "liquidate the properties and assets by sale, exchange, lease or other disposition at such time or times and for such price or prices as the Board shall deem reasonable and expedient."

As found by Judge Broadhurst, the Palisade East tract is a "five-sided area"; the easterly boundary "is the edge of a cliff"; it is "about 2,300 feet long"; the "southerly boundary (Wilson Road) is about 500 feet long"; the "southwesterly side is 1,400 feet, the westerly side 1,900 feet, and the northerly side (West View Avenue) 550 feet in

length," and it "contains 44 to 45 acres"; to the west of the Palisade East tract and "running generally parallel with its westerly boundary is Route 9-W (locally called Palisade Avenue)," "a super highway 75 feet wide and the principal northbound feeder road to the nearby George Washington Bridge"; approximately 1,500 feet of the tract "abuts on 9-W"; the "entire tract still remains in its virgin state," "heavily wooded"; the "land slopes downward in varying but substantial degrees to the edge of the cliff"; it has "a tremendous deposit and overburden of diabase rock"; and "the area contains no houses, streets or facilities of any kind."

And the ownership of the tract when the ordinance was first introduced, January 2, 1957, follows: "Board of Liquidation, 132 lots, 17.33 acres; Borough of Fort Lee, 16 lots, 2.05 acres; private ownership, 44 lots, 5.41 acres; paper streets, 6.33 acres."

By a resolution adopted May 9, 1956, the board of liquidation made known that it had accepted an offer submitted by Alexander Summer, Inc. on August 15, 1955 to purchase all of the lots in the Palisade East tract for the sum of $309,400, conditioned (a) on Summer's acquiring the "63 lots in the tract" then in private ownership, and (b) a rezoning of the lands "to permit the erection of multiple story apartment buildings * * * not [to] occupy more than 20% of the total ground area"; that Summer had acquired "by purchase or contract, all of the privately-owned lots"; and that the board had unanimously concluded that it would be in the essential public interest to amend the zoning ordinance accordingly, for these reasons in particular: (1) the consummation of the sale would restore "ratables * * * of many acres of land" which had been "off the tax rolls for a quarter of a century, plus the millions of new ratables which will result from the improvements contemplated thereon"; and (2) this would "greatly improve" the borough's "financial position for the future and probably result in raising the rating on its outstanding bonds"; (3) it would "bring a vast amount of new purchasing power into the community through which every merchant

and every citizen engaged in the professions should benefit"; (4) it would "produce a very sizable reduction in the annual tax bills for every taxpayer"; and (5) it would "result in the early termination of the Board of Liquidation."

On May 17, 1956, the borough clerk forwarded to the planning board a copy of the resolution adopted by the board of liquidation and a proposed amendment to the zoning ordinance, advising that the resolution had been "read" at a meeting of the governing body held the preceding day "and referred to the Planning Board for recommendation."

The planning board enlisted the professional aid of Community Planning Associates, Inc. as to the "desirability and feasibility" of the multi-family apartment use in the area; the result was a comprehensive study of the proposal and a report made July 9, 1956 certifying the consultant's considered judgment that "due to its physical features, its location and the general characteristics of the immediate vicinity," the tract in question "is well suited for development as a multi-family apartment zone and would be unreasonably and unrealistically regulated if confined only to the potential of single-family development," and the multi-family apartment use "represents the highest, best and most appropriate use of land to which this area can logically and economically be put," and recommending an amendment of the master plan accordingly.

On July 19, 1956, the planning board held a public hearing of the question on notice; on July 26 there was a special meeting, open to the public, for a further discussion of the proposal; on November 16 it conferred in joint session with the governing body and the board of liquidation; and on November 20, 1956, after consideration of a report made by a subcommittee of the board, it adopted unanimously a resolution recommending to the governing body that the land be rezoned to permit "multi-apartment house dwellings."

On January 2, 1957 the ordinance was introduced and a hearing before the governing body was set for February 6.

On January 14, 1957 the borough clerk advised the planning board, by letter, that the proposed ordinance had been

amended to eliminate a provision respecting the height of the apartment buildings above the center line of the street, and to correct a seeming error not relevant to this inquiry; and the letter and a copy of the amended draft were read at a meeting of the planning board held the following day.

On January 29, 1957 the borough clerk forwarded to the planning board for review another proposed amendment to the ordinance, the nature of which is not revealed by the record.

On February 5, 1957 the planning board returned the measure to the governing body with certain recommendations involving the "interests" of adjoining landowners and the "community as a whole"; and on the following day the governing body adopted an amendment of the draft "establishing zone boundaries, with respect to R-7 Districts, and establishing therein a buffer zone," as Judge Broadhurst found. And the findings continue thus:

"* * * At this meeting a resolution was passed directing the Borough Clerk to publish said ordinance as amended and notice of a public hearing to be held February 27th. The buffer zone created by the amendment of February 6, 1957 skirted the entire Palisade East tract except: (1) At the northerly end, where it abuts an area already zoned and used for six-story apartment houses; and (2) along the edge of the cliff. The buffer zone varied in width. At the north end of the west side it was 70-75 feet; midway on that side 100 feet; at the southerly end of that side 250 feet and at the south end 50 feet. This buffer zone ...


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