Goldmann, Conford and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff Borough of Leonia appeals from a judgment of the Superior Court, Law Division, holding valid a 1958 amendment to the zoning ordinance of defendant Borough of Fort Lee which rezoned from residential to business use a 100'-deep tract fronting on the west side of Bergen Boulevard. This thoroughfare constitutes State Highway 46 and part of U.S. Routes 1, 9 and 9W. It is one of the most heavily traveled highways in the State, being the main artery from the George Washington Bridge to the New Jersey Turnpike, and also the normal route for traffic heading south on U.S. Route 1. Leonia borders the tract in question on the west. This is the third suit in two years involving Fort Lee's attempted rezoning of the property. A brief description of these actions is necessary to a better understanding of the present appeal.
On July 5, 1956 Fort Lee adopted ordinance No. 1005 amending its 1921 zoning ordinance so as to rezone the tract here involved (known as Lots 61 through 90, Block 154, City Atlas) from R-2 Residential to C-1 Central Business, the rear 10' bordering directly upon Leonia to be reserved as a buffer zone and planted with shrubs and trees. Leonia brought a proceeding in lieu of prerogative
writs to set the ordinance aside. Its right to maintain that action or those that followed is not questioned. Cf. Cresskill v. Dumont , 15 N.J. 238 (1954). The matter proceeded to trial before Superior Court Judge Waesche. After some of plaintiff's witnesses had testified it was suggested that there might be a common meeting ground for agreement. Following a discussion in which the mayor of Leonia, its then counsel, and present counsel for Fort Lee participated, it was agreed that a judgment be entered which would set aside the ordinance in part. The compromise effected was that all property along the ramp leading up from Main Street be returned to residential use, and the remainder of the tract to the south be zoned for business. Judge Waesche approved the settlement and subsequently entered judgment on May 22, 1957, holding that Lots 78 through 90 were properly zoned as C-1 Central Business and Lots 61 through 77 were not, and setting aside ordinance No. 1005 to that extent. Fort Lee's counsel having represented to the court that the municipality was willing to introduce a zoning amendment restricting the lots approved for business against use for truck-trailer camps, diners and motels, the judgment further ordered that Fort Lee cause such an ordinance to be introduced. Counsel for both municipalities consented to the form of the judgment (hereinafter called the first judgment).
In an apparent effort to carry out the terms of the judgment, the governing body of Fort Lee on August 7, 1957 adopted ordinance No. 1016, amending and supplementing ordinance No. 1005 to prohibit truck-trailer camps, diners, motels and junk yards on Lots 61 to 90, inclusive, and in addition prohibiting gasoline service stations, new or used vehicle sales business, automobile repair business and parking lots on Lots 61 through 71 (these fronted directly on the ramp). Leonia at once attacked the ordinance by an in lieu proceeding, claiming that ordinance No. 1016 constituted spot zoning, was passed in disregard of its direct effect on the contiguous residential area in Leonia, and was
not a bona fide exercise of the legislative zoning power. The trial resulted in a judgment (hereinafter the second judgment) entered by Judge Waesche on March 12, 1958, setting aside the ordinance "for lack of clarity and for indefiniteness," but "without prejudice to the right of the Borough of Fort Lee to adopt such ordinance as it deems advisable under all the circumstances."
Fort Lee had in the meantime, on March 3, 1958, moved to vacate the original consent judgment. Its counsel filed an affidavit alleging that he had misunderstood the location of the dividing line between the business and residential zones fixed by the first judgment, and that property owners in both Fort Lee and Leonia had complained that the judgment adversely affected their interests and they had not had an opportunity to be heard. As a result of a conference between counsel and Judge Waesche Fort Lee's attorney agreed that the municipality would pass a zoning amendment in order that all issues, including the interests of the property owners along the ramp, could properly be heard and adjudicated by the court. (The result was the adoption of ordinance No. 1016.) The motion to vacate was opposed by counsel for Leonia whose affidavit stated that the settlement had been thoroughly understood by everyone. The motion was denied.
At the trial of the present (third) action counsel for both sides agreed that Judge Waesche had denied the motion because he saw no reason why the consent judgment should have any effect upon subsequent proceedings. The question of the application of res judicata had come up in the course of the argument on the motion; the judge had been of the opinion that the doctrine was not applicable and that the question did not even merit consideration. From this it is clear beyond any doubt that Leonia understood that Judge Waesche considered the first judgment inoperative as a bar to any future action and, further, that the municipality acquiesced in this decision until the trial of the third action when, as noted below, it made a half-hearted attempt
to raise the issue. That such was the understanding of the court and counsel is made manifest by the concluding provision of the second judgment, entered the same day as the order denying the motion to vacate, setting aside ordinance No. 1016 without prejudice to the right of Fort Lee ...