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Bartlett v. Township of Middletown

Decided: July 7, 1958.


Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.


[51 NJSuper Page 244] Plaintiffs, four residents and taxpayers of the Township of Middletown, brought an action in lieu of prerogative writs seeking to set aside in its entirety an amendatory zoning ordinance adopted by the township on March 6, 1957, on the general ground that it did not represent a reasonable exercise of municipal power. Secondary legal issues raised in their complaint and amended complaint dealt with the propriety of the township's appropriation and expenditure of funds under its 1956 budget for a "master plan," and with the nature of defendants' authority to adopt such a plan. There was an extended trial before the Law Division judge sitting without a jury, at the end of which he delivered an oral opinion finding in defendants' favor. The judgment under appeal followed, dismissing the complaint and amended complaint because plaintiffs had failed to sustain their burden of establishing that the amendatory zoning ordinance was arbitrary or unreasonable. The judgment also declared that the question raised by plaintiffs as to the nature of defendants' authority to adopt a master plan, or any land use map in connection therewith, was academic and involved hypothetical questions not presently in issue or requiring judicial construction; and that the legality of the

appropriation and expenditure for the master plan was not pertinent to the validity of the amendatory ordinance and should not be determined in the proceeding.

We have reviewed in detail the extensive record of testimony compiled in the trial court, the zoning history and ordinances of Middletown Township, and particularly the 70-odd exhibits introduced in evidence, consisting of extensive excerpts from the minutes of the township committee and township planning board, reports, zoning maps, photographs and aerial views. A complete factual picture would require a prohibitively long exposition; nevertheless, a much more detailed treatment of the facts than is ordinarily attempted in a zoning opinion seems advisable.


Middletown Township is a large, roughly triangular-shaped municipality in Monmouth County covering about 38 square miles and extending from Sandy Hook Bay and the Boroughs of Highlands, Atlantic Highlands and Keansburg on the north to the Navesink River on the east and southeast. To the west are Raritan and Holmdel Townships, and on the south Atlantic Township and the Borough of New Shrewsbury. The main arteries of travel are Route 36, a two-lane state highway extending east-west through the northerly section of the township and running generally parallel to the shoreline of Sandy Hook Bay, and Route 35, a four-lane state highway, bisecting the township and running in a northwest-southeast direction for a distance of about 5.7 miles. Route 35 extends from Woodbridge to the north, to the Brielle Circle on the south and, except for the Garden State Parkway opened in 1954, is the principal highway through Monmouth County.

Until recent years Middletown Township was primarily a rural county, with most of its area devoted to farms and estates. There were a number of small, built-up, all-year residential areas scattered through its middle and western parts. Along Sandy Hook Bay and the north side of Route 36 are the communities known as East Keansburg, Port Monmouth, Belford and Leonardo, populated in great measure

by summer residents. None has a substantial business area, although each is serviced by neighborhood stores. Such commercial and light industrial enterprises as existed were located primarily along the state highways.

The township has experienced a phenomenal growth in the past two decades. Its permanent population has increased from 11,000 in 1940 to 16,000 in 1950, and at the time of the trial was estimated to be in excess of 30,000. The population growth of surrounding municipalities has also been quite substantial. There had been a steadily increasing influx of people before the opening of the Garden State Parkway; thereafter there was a veritable surge of new population. The rapidly changing characteristics of the community are best highlighted by the statistics relating to building permits issued by the township since 1950. In that year there were 321 permits for new homes; in 1951, 1952 and 1953 there were 410, 361 and 370 permits issued, respectively; in 1954 building permits for new homes numbered 1,272, and in 1955 some 1,474 additional permits were issued. Whereas building permits for commercial or business buildings having an estimated value of $86,000 were issued in 1951, the figure for 1955 was $634,000.

Up to 1954 a large portion of the new residential development took place in the area west of the established communities on the Bay shore and east of Route 35, although there was considerable residential development in the western sector of the township. The northeastern area, insofar as it is suitable and zoned for large-scale residential subdivisions, has now been substantially utilized. As a result, a large proportion of the subdivisions approved since the creation of the township planning board -- this took place in 1954 -- have been in the area east of Route 35. It is generally conceded that future residential development must take place in the area west of that highway. Land use studies and a survey made by Rutgers University for the local board of education in 1955 shows the course of development to be from east to west. The tremendous population growth in the township has produced a $4,520,000 school expansion

building program, the Rutgers survey projecting a total program by 1959 costing some $13,000,000.

With the exception of a short stretch immediately north of the Navesink River, almost none of the Route 35 frontage has been or is now used for residential purposes. Prior to the opening of the Garden State Parkway, Route 35 was the main highway through Middletown Township to the shore from the metropolitan area lying to the north. Its traffic pattern was primarily through-traffic, and the businesses established along both sides of the highway were designed to accommodate that traffic, the business growth taking place to a large degree on the east or north-bound side of the highway, because of the traveling public's habit of making purchases on the return trip to the metropolitan area. These business establishments were generally of a roadside stand or simple character; some could properly be characterized as light industrial in nature. Ordinarily, they extended to a depth of not more than a few hundred feet. Much of the property fronting on the highway remained vacant and a considerable part comprised large tracts of open farmland.

This traffic pattern and the character of use along Route 35 changed radically after the opening of the Garden State Parkway in the summer of 1954. Traffic now became predominantly local and, to some extent, regional, reflecting the diversion of some of the through-traffic to the Parkway and the great increase in local traffic resulting from the unusual growth in local population. A traffic count showed a daily average of from 18,000 to 24,000 vehicles.

Prior to the adoption of the challenged zoning amendment of March 6, 1957 the property on both sides of Route 35 was zoned for business use (Zone F) for substantially its entire length in the township. With only few exceptions the depth of this zone extended 200 feet from the highway on the west side and 400 feet on the east. Beyond these depths only a very small part of the property zoned residential was actually committed to such use. There were extensive areas of open, undeveloped land, and an examination of the aerial photographs shows that such is still the case in relatively large

measure. The principal areas actually used for residential purposes beyond the indicated depths were and are in the area on both sides of the highway for a little more than a mile north of Navesink River, the area on the west side of Route 35 comprising part of Middletown Village between its northerly terminus at Kings Highway and its southerly terminus at the Town Hall or "Five Corners" (located in mid-township), and a small area on the east side of the highway near "Five Corners" known as Middletown Estates.

The township's recent large influx of population has brought with it increasing activity along the highway. This is best reflected in the testimony of defendants' expert Lazarus, a realtor with an intimate knowledge of the entire highway area, who described to the trial court in considerable detail the great changes in the township along Route 35 since 1954. His recital of new business buildings included an insurance company branch office, gift shop, real estate office, Howard Johnson restaurant, professional building, rug and carpet sales building, dairy bar, modern gasoline and service station, firehouse, shoe store, screen and lumber store, modern bowling alley, real estate office and coffee shop, the Kislak Shopping Center comprising 11 to 14 acres, a large dial telephone building, ice cream stand, remodeled dry cleaning plant, the new Middletown Post Office, the Keansburg National Bank Building, and a super-market of 15,000 square feet known as the Food Circus. Photographs of these structures, all of them of a substantial character, are reproduced in defendants' supplemental appendix. Lazarus' testimony, dealing almost exclusively with the character of the highway area, its suitability for the uses permitted under the former ordinance as well as under the challenged amendment, and the effect of the new ordinance on neighboring residential areas, went virtually uncontradicted. It is of significance in evaluating plaintiffs' claim that there was no testimony supporting the need for the changes effected by the amendment, and their assertion that defendants had not even attempted to show that the character of the neighborhood had changed sufficiently to justify such amendment.

Middletown adopted its original zoning ordinance in 1935. There was a general revision of the ordinance in October 1949; under it all of the highway area except residential tract C-4 was placed in zone H-undeveloped, which permitted any use "so long as it shall not be noxious or offensive by reason of odor, dust, smoke, gas or noise, or so long as it shall not be otherwise prohibited by law." C-4, a tract roughly rectangular in shape, was located 200 feet to the west of Route 35 and extended for some miles along its middle and northern portion, from the Naval Depot Railroad (intersecting Route 35) on the south to just north of Kings Highway on the north.

On August 14, 1950 the ordinance was amended to create -- out of zone H-undeveloped -- business tract F-13, an area 200 feet deep on the west side of the highway (this depth coincides exactly with the 200-foot area which theretofore separated residential tract C-4 from Route 35) and 400 feet deep on the east. This ordinance obviously followed the then popular concept of strip-zoning for business purposes. As developed by the testimony, the 200-foot depth on the west side was dictated by the fact that the area beyond had already largely been established for residential use, the topography did not readily lend itself to a greater depth for business purposes, and the eastern side of the highway was considered more desirable for business because of the traffic pattern we have referred to. Similar considerations controlled the fixing of the 400-foot depth on the east side: residential use had not in significant measure come within 400 feet of the highway, the topography permitted a greater depth for business use, and the traffic pattern called for a greater business depth.

Early in 1954 the area on both sides of the highway, from the township boundary on the north to Harmony Road about 3,750 feet to the south, was established as a business zone with a depth on both sides of 400 feet. At about the same time the area on both sides south of the Naval Depot Railroad was placed in a business zone with a depth of 200 feet on the west as far south as Iroquois Avenue and a depth

of 400 feet on the east as far south as Frost Avenue -- a distance of about a mile according to the scale of the zoning map in evidence. A considerable area between the railroad and Fairview Road to the south, already established as a business area and used in part as a picnic grove and in part for a cemetery, was at that time extended westerly to a depth of better than 2,000 feet to the right-of-way of the New York and Long Branch Railroad which somewhat parallels Route 35.

As part of a general program, various areas in the township not previously zoned for residential purposes were, on March 10, 1954 and December 8, 1954, transferred from the H-undeveloped zone to B or C residence zones. These included some areas adjacent to the rear lines of the various boundaries of the business zones along Route 35. At the same time, certain areas previously zoned for residential purposes were transferred to more restricted residential zones.

Thereafter, on February 9, 1955 the depth of the business zone was increased by ordinance from 400 to 600 feet on the east side of the highway between Harmony Road and Tindall Road near the Town Hall or "Five Corners," except for a small section actually established for the Middletown Estates residential development, where the depth was decreased to 300 feet to coincide with the boundary of the development. Part of this area is presently used by the Kislak Shopping Center.

One month later, on March 9, 1955, the township committee approved a recommendation of the zoning board of adjustment permitting a small triangular tract of land along Mountain Hill Road (this road led into Route 35 from the east at the "Five Corners"), immediately to the east of the 400-foot business zone on that side of the highway, to be used for business purposes. Presently located in this area is the Food Circus super-market and a branch of the Keansburg National Bank.

Finally, on November 9, 1955 the township committee adopted a zoning amendment increasing the depth of the business zone on the so-called Allen tract, located on the

west side of the highway opposite the "Five Corners," from 200 to 800 feet for a distance of about 1,500 feet, this depth cutting into the previously established C-4 residential zone. Allen had in July 1955 requested that the depth be increased as to all of his 192 acres fronting some 3,000 feet on the west side of the highway. The validity of the November 9, 1955 ordinance was challenged by some of the plaintiffs in this action, together with others, with the result that the ordinance was set aside on the technical ground that the planning board had not first passed on the change in its entirety.


We now come to the background of the challenged zoning amendment of March 6, 1957, as revealed by the official minutes of the local planning board and the township committee.

In March 1954 the township committee set up a nine-member planning board to consider the many problems created by the township's greatly increased population. At first the planning board interested itself in a study of possible industrial sites along or near Route 35, and the possibility of zoning the highway area to permit desirable industries to locate there. The matter was discussed with the township committee, but no action was taken. As early as January 24, 1955 we find the board considering the necessity for a comprehensive study of the township and the desirability of engaging professional planning consultants to assist in the project. On that date the board discussed with Director Pike of the Monmouth County Planning Board the basic requirements for such study, and it was agreed to procure the services of Rutgers University in the preparation of a land use map. Such a map was prepared under the auspices of the School of Engineering at the University, at the expense of the township. At a meeting in May following, Pike advised the board that if it intended to reserve a section for industry, it should designate that area and put it in an industrial zone. He met again with the planning board

on August 8, 1955, at which time he suggested that a committee be appointed to work out a master plan. At a regular meeting held September 12, 1955 the land use map prepared by Rutgers was displayed and explained and a master plan committee appointed.

Thereafter, the planning board met with the township committee to discuss a number of problems, at which time it was agreed that a professional consultant be engaged and that the board would interview three men. The board had already met with Charles K. Agle, a planning consultant, on November 21. It conferred with planning consultant Russell V. Black on December 19, 1955, and on January 16, 1956 it interviewed Herbert L. Smith, executive director of Community Planning Associates, Inc., of Princeton, regarding the preparation of a master plan and a planning study of the township. Thereafter the board met on January 23, 1956 and discussed the proposals submitted by the three planning consultants, with the result that a resolution was unanimously adopted recommending to the township committee the hiring of Community Planning Associates, Inc., at $17,500. On March 28, 1956 the township entered into a contract with that firm to perform the planning services required by the township in connection with its zoning and planning activities.

Before this contract was actually signed Community Planning Associates and its representative, Smith, had been informed that one of the most pressing problems in the planning program was the manner in which Route 35 should be treated. He was asked to give this problem top priority, and also to report on certain other special matters such as schools and municipal facilities. Community Planning Associates submitted its preliminary zoning study on May 7, 1956, which carefully analyzed the existing zoning ordinance, directed attention to its major weaknesses and particularly emphasized that the Route 35 area represented the most important zoning problem in the community. Among the weaknesses described was the existence of two rather substantial portions of the township designated as H-undeveloped

zones, the excessive use of strip commercial zoning, the fact that altogether too much land was zoned for business use, the inadequacy of the regulations and standards enumerated for residential and business zones, the large number of uses permitted in a business zone (almost any type of general manufacturing or industrial use would have to be allowed unless it was determined offensive or noxious), the very weak standards established for industrial zones, and the inadequacy of the section dealing with non-conforming uses. The planning consultants had made a special study of Route 35 and the properties adjacent to it; a study of community and regional and population trends, distribution, density and future growth expectation; a land use survey, and a comprehensive study of the whole of Middletown. The preliminary zoning study presented to the planning board contains the basic recommendations incorporated in the zoning amendment here under review.

Receipt of the zoning study set in motion an extended and intensive consideration of its recommendations and their particular application to the area in question, as well as many public meetings at which the proposed rezoning of the highway was discussed at length. The study was briefly considered at the regular meeting of the planning board on May 7, 1956 and then further discussed on June 14 when the board arranged for reprinting the map prepared by Community Planning Associates and a summary of the proposed zoning changes, and for their distribution. There was a lengthy public hearing on July 2, 1956, apparently attended by a large number of citizens who fully aired a great variety of views. The suggestions made were reviewed by the planning board at a special meeting of July 23. The board and the township committee then held a joint conference on August 6, at which time it was decided that various committees would meet with different groups of property owners along Route 35. The rezoning was further discussed by the planning board on September 10, and again at a special meeting two weeks later when a number of citizens were heard and it was decided to confer further with the township

attorney and representatives of Community Planning Associates. At a regular meeting on October 1 other members of the public expressed additional viewpoints on the rezoning of the highway, after which the board conferred with the planning consultants. The board then arranged for another public session on November 20, when a further lengthy hearing took place.

Finally, on December 3, 1956 the planning board formally adopted a resolution recommending to the township committee that it introduce an ordinance to rezone Route 35. The recommendation substantially followed the original proposal of the planning consultants, with a number of changes included. The township committee received the recommendation on December 12, heard a number of objections, and then regularly referred the matter for study to the township committee sitting as a committee of the whole.

The proposed zoning ordinance was finally introduced on January 23, 1957, incorporating the planning board recommendations. At the same time a sketch map was submitted showing the boundaries of the areas affected, as revised from the original proposal. The ordinance having duly been referred to the planning board for report, the board again considered it on February 4, heard from a number of interested citizens, and then adopted a seven-page resolution and report addressed to the township committee, unanimously approving the proposed legislation. The governing body conducted a lengthy public hearing on February 27, at which time it considered the report of the planning board and several petitions of protest, and heard from quite a number of citizens who spoke for and against the ordinance. The hearing was continued on March 6, when further speeches and representations for and against the ordinance were heard and considered. At the close of the hearing the ordinance under review was unanimously adopted.


The amendatory ordinance deals comprehensively with the problem of rezoning Route 35 in order ...

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