Brown, J.d.c. (temporarily assigned).
[60 NJSuper Page 368] This case involves the validity of an amendment of the Borough of
Saddle River zoning ordinance. The amendment was enacted by Ordinance No. 105 which provided for the regulation of private and parochial schools as to location in residential zones and as to site requirements. The plaintiff Gerald C. McNamara is a resident property owner. The plaintiff Chestnut Ridge Land Co., Inc. is the owner of approximately 20 acres of land in the borough which property is leased to the plaintiff Saddle River Country Day School for the purpose of operating a private school. The latter plaintiff will be referred to as "the school" hereinafter.
These plaintiffs by this proceeding in lieu of prerogative writ have challenged Ordinance No. 105 on the grounds that it discriminates against private and parochial schools on the one hand and public schools on the other; requires minimum standards which bear no reasonable relationship to school operation; discriminates against parochial schools; and is voidable because of enactment by the vote of a councilman disqualified by interest in the subject matter.
This issue concerning Councilman Wollen's participation in the enactment of Ordinance No. 105 requires primary attention. It must be considered in an extended context.
A substantial part of the environment is provided in the Appellate Division opinion in the consolidated cases of Saddle River Country Day School v. Borough of Saddle River (Wollen v. Saddle River Country Day School) reported in 51 N.J. Super. 589 (App. Div. 1958). Judge (now Justice) Hall described therein the general character of the Saddle River community and the chronology of events which brought the school and the borough into court for the initial litigation.
The Appellate Division determined that the zoning amendment proviso concerning school locations was invalid. On April 7, 1959 this judgment was affirmed by the Supreme Court on the opinion below, 29 N.J. 468.
The borough adopted Ordinance No. 105 on June 15, 1959. By its provisions, the zoning ordinance was amended to provide standards and procedures for the location of
private and parochial schools in residential zones. Among the "basic standards" stipulated is the following:
"The minimum site area for an elementary (Primary) school (such school being one which includes grades numbers one through eight) shall be five (5) acres, plus one additional acre for each seventy-five (75) pupils. The minimum site area for an intermediate or high (secondary) school (such school being one which includes grades nine through twelve) shall be fifteen (15) acres, plus one additional acre for each twenty-five (25) pupils. Not more than twenty (20%) per cent of the site shall be covered by buildings."
It is further provided by the amending ordinance that this standard, like the others, is a minimal guide subject to special or unusual factors in a given case. Board of adjustment recommendation for a permit is made subject to review by the governing body. The latter is empowered to approve with additional limitations.
According to the testimony of Douglas Ogilvie, headmaster of the school in question, it is now planned to accept students for grades 5 or 6 through 12. It was his opinion that optimum function of the school will require a student body of 200 to 250. The tract of about 20 acres will support an establishment of that size, he said. The effect of the quoted minimum site area requirements is to limit the enrollment of the school to a maximum of 125 pupils based upon the estimated acreage. A permit has been issued for 124. The circumstances outlined in Judge Hall's opinion and the continuing development of the situation as unfolded in the trial of the present action furnish the totality of background necessary for determination of the issue presented. The conduct of Mr. Wollen must be examined with relation to this context.
It is Wollen the citizen who moves through the first phase of the municipal proceedings. It is Councilman Wollen who acts at the end. His involvement in both of these capacities vis-a-vis the school creates a conflict of interest according to the plaintiffs. He was one of the individual
litigants who filed a separate suit against the school substantially on the same basis and for the same relief as in the municipality's counterclaim in the prior action. Thereafter he was elected a councilman of the borough and he voted to enact the challenged ordinance.
The defendant urges that Mr. Wollen acted at all times on the strength of a personal conviction that private schools should be regulated. This was "what was right for the community." His belief in this principle consistently motivated him as an individual party plaintiff in prosecuting the action against the school, in his candidacy for election to the borough council and in his vote as a councilman. The law could not require him as an office holder to reverse the public position he had taken as a citizen.
There can be no dispute with the proposition of law upon which the argument depends. It was laid down in the case of Wollen v. Borough of Fort Lee , 27 N.J. 408 (1958), where the Supreme Court said:
"* * * it would be contrary to the basic principles of a free society to disqualify from service in the popular assembly those who had made pre-election commitments of policy on issues involved in the performance of their sworn legislative duties. Such is not the bias or ...