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Itallie v. Borough of Franklin Lakes

Decided: November 17, 1958.


On appeal from the Superior Court, Law Division, to the Appellate Division, certified by the Supreme Court on its own motion prior to hearing in the Appellate Division.

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


Plaintiff, a taxpayer, filed a complaint in lieu of prerogative writ in the Superior Court, Law Division, challenging the validity of two ordinances of the Borough of Franklin Lakes, principally on the ground that a conflict of interest existed on the part of two of the borough councilmen, Birrer and Bender. Ordinance 139 regulates the location and establishment of cemeteries within the municipal boundaries and Ordinance 140 is a general amendment to the borough zoning ordinance. At the close of plaintiff's case the trial court granted defendant's motion for a judgment of involuntary dismissal. While plaintiff's appeal was pending in the Appellate Division we certified the cause on our own motion.

Franklin Lakes is a rural community in Bergen County encompassing about ten square miles. It has a population of about 2,700 persons and approximately 750 homes. An area of 1,250 acres, about one-fifth of the borough, is owned by the Archdiocese of Newark.

Zoning was instituted in Franklin Lakes in 1937 at which time, except for a small area in which business and industrial uses were permitted, the entire borough was zoned for residential use. The minimum lot size permitted was 75 x 150 feet. In 1953 by an amendment to the zoning law most of the borough was upgraded to minimum lots of one and two acres. Since then the Archdiocese and a large number of property owners have strenuously objected, contending that it is impractical to develop residential property under a two-acre requirement. As a result of these protests, almost immediately after the passage of the 1953 ordinance the [28 NJ Page 263] borough council and the planning board began a study pointing toward a revision of that ordinance. This study continued into 1957, when the ordinances now challenged were adopted. In the course of such study the Archdiocese made known at numerous meetings of the planning board and council its various proposals for the use of its acreage. These included a parochial school, a church and a cemetery. In addition, it intended to sell a portion of its property for purposes other than religious uses, namely, for the development of residential, business and industrial uses. In 1955 the Archdiocese entered into a contract with Urban Farms, Inc., for the sale and development of this land. The contract was contingent upon a change in the zoning ordinance because it was felt that development would not be possible under the then existing zoning ordinance. The Archdiocese also retained Urban Planning Associates to draft an appropriate re-zoning plan. Through these representatives the Archdiocese submitted to the planning board a request for re-zoning. This request contained numerous proposals including a reduction of the two-acre requirement in portions of the residential area to one-acre lots, re-zoning of 50 acres for a memorial park cemetery, a cultural area, a church and a parochial school. The proposed plan became the center of controversy and a citizens' committee, of which the plaintiff was a member, was formed to oppose it. The principal opposition was to the proposed reduction of the area comprising the two-acre zone established by the 1953 ordinance. There was no objection to the proposed church, school and cemetery. In August 1956 the planning board recommended to the council the adoption of an ordinance embodying the requests mentioned above. Other proposals of the Archdiocese were rejected. The recommended re-zoning encompasses lands in addition to those of the Archdiocese. As a result of opposition to the recommendation, the council felt an independent study would be desirable and George A. Raymond Associates, planning consultant, was retained for that purpose. It submitted its report to the council on

October 26, 1956. The Raymond report recommended the adoption of substantially all of the proposals with the exception of the reduction in area of the two-acre zone.

Ordinance 140 was introduced in the early part of 1957. On April 9, 1957 the planning board, of which Councilman Birrer was a member, recommended its adoption. On April 22, 1957, after an extensive public hearing, Ordinance 140 was adopted by a 4 to 2 vote by the council. Ordinance 139 was adopted by a 4 to 3 vote, the mayor having voted affirmatively to break a 3-to-3 council deadlock. At this meeting a letter was received from two citizens of the borough in which they questioned the legality of the vote of Birrer, for the reason that his brother was in the employ of a party interested in the passage of the ordinances. Councilmen Birrer and Bender voted for Ordinance 140. Birrer voted in favor of and Bender voted against Ordinance 139.

A synopsis of the pertinent changes in the zoning scheme brought about by Ordinance 140 is as follows: (1) it increased the area of AA (one-acre) residential districts, thereby decreasing the area of the AAA or two-acre residential zone. The new AA area was contained between two 500-foot contour lines and provided that property outside these lines exceeding an 8% grade would be in the AAA (two-acre) classification; (2) it permitted use of land in residential districts for "cemeteries when owned and operated by non-profit religious organizations"; (3) it created a new BB business zone for historical and cultural purposes, in which existing historical sites are to be maintained and in which a club house, a souvenir shop and a restaurant are permitted uses. Ordinance 139 regulates the location, establishment and operation of cemeteries authorized by Ordinance 140.

The pretrial order listed the following contentions of the plaintiff: (1) re-zoning of District AAA (two-acre) to District AA (one-acre) was unreasonable, capricious and arbitrary; (2) the BB zone constituted spot zoning; (3) Councilmen Birrer and Bender had a personal interest in the adoption of the ordinances and therefore should have been disqualified from voting thereon.

At the trial the plaintiff withdrew his first contention. He abandoned the second on this appeal. During the trial, however, in addition to the plaintiff's third contention the following matters were put in issue without objection: (1) the boundary lines between Districts AAA and AA are vague in that they contain an inadequate standard; (2) permitting the establishment of cemeteries only by non-profit religious organizations constitutes unreasonable classification and discriminates against non-profit, non-religious cemetery organizations.

On this appeal plaintiff first contends that Councilman Birrer was disqualified from participating either as a member of the planning board or as a member of the council because of his conflicting interests. Plaintiff also challenges Bender's participation as a member of the council for the same reason. The defendant borough denies that either councilman had a conflicting interest. In addition, the borough argues that in the enactment of the ordinances the councilmen were acting in a legislative capacity and thus a showing of actual bad faith or improper motivation is necessary to vitiate their actions.

The citizens of a community have a right to expect that a public official in the performance of his duty will exercise his best judgment unaffected by anything which will inure to his personal advantage. In order to secure complete impartiality in matters coming before a municipal planning board, the Legislature has prescribed that a member of such a board shall not be permitted to "act on any matter in which he has either directly or indirectly any personal or financial interest." N.J.S.A. 40:55-1.4. See Zell v. Borough of Roseland, 42 N.J. Super. 75 (App. Div. 1956). Members of the governing body, in their consideration of recommendations by the planning board, should not be permitted to act where a similar interest is present. The logic of this is cogently demonstrated by the facts of the present case. Birrer is a member of both the planning board and the borough council. An interest sufficient to disqualify him from acting on the planning board should equally work

a disqualification from his acting as a member of the borough council, at least when it is deliberating matters recommended by that body. The same reasoning applies to Councilman Bender. As a member of the borough council he was acting on the same matters that were dealt with and recommended by the planning board, and his actions must therefore be viewed in the light of the statutory provision. Therefore, the inquiry must be: Did Councilmen Birrer and Bender in participating in the adoption of these ordinances have directly or indirectly any personal or financial interest in the statutory sense?

The interest which it is alleged conflicts with Councilman Birrer's duty to impartially act on the ordinances in question arises from the following circumstances: (1) Councilman Birrer's younger brother, Robert Birrer, has since 1952 been employed as an accountant-bookkeeper by the Frank A. McBride Company. J. Nevins McBride is the executive vice-president of the Frank A. McBride Company and is also the president of Urban Farms, Inc., which held the contract to purchase part of the Archdiocese's property and intended to develop it. He is also a principal officer in Urban Planning Associates, which prepared and submitted the proposals, many of which culminated in the ordinances. He appeared several times before the planning board and borough council to urge the adoption of the Archdiocese's request. There is sufficient proof that Frank A. McBride Company, Urban Farms, Inc., and Urban Planning Associates were controlled by substantially the same persons and were affiliated at least to the extent of having a common interest in the proposal of the Archdiocese. We agree with the plaintiff that Councilman Birrer's brother was employed by a corporation which was interested in obtaining the passage of the challenged ordinances. Councilman Birrer did not attempt to hide the fact that his brother was a McBride employee. Indeed, he volunteered this information at a meeting of the planning board in August 1955. (2) In 1954 or 1955 Councilman Birrer engaged in a conversation with J. Nevins McBride concerning the possibility of locating

a golf course in the borough. It was indicated that among the possible locations for the course one might encompass the Birrer lands. During the August 1955 meeting of the planning board, Birrer voluntarily informed the members of the board of this conversation. (3) Councilman Birrer owns a 40-acre plot in the borough. It has a 210-foot front-age on Summit Avenue. A portion of the rear of the land is contiguous with a 300-acre quadrant owned by the Archdiocese. Somewhere within this quadrant the proposed cemetery is to be located. Ordinance 139 requires that:

"A buffer strip of land not less than two hundred and fifty (250) feet wide shall surround the land for which consent to or approval is given to locate and establish a cemetery, upon which land a street, not less than fifty (50) feet in width may be built on its periphery and fronting on the said street, residences may be built on plots of land in accordance with the requirements of the applicable residence zoning districts in the Zoning Ordinance of the Borough."

Plaintiff contends that the cemetery could be so located that a permitted street on the periphery of the buffer zone would materially benefit Birrer's land, in that it would provide a means of access to the rear portion of his property.

Does any one of the above allegations or all three in concert establish the personal interest requisite for ...

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