Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff appeals from a Law Division judgment dismissing its complaint in lieu of prerogative writs contesting the validity of defendant township's 1957 zoning ordinance and a 1958 amendment thereto. It contended that the ordinances were not drawn in accordance with a comprehensive plan; they did not comport with the purposes of zoning as set out in R.S. 40:55-32; they constituted "spot zoning," in violation of the design and purpose of the Zoning Act; and they were the result of personal favoritism, collusion and discrimination by municipal officials not acting in the best interests of the community's health, safety, welfare and morals. Plaintiff further contended that the ordinances should be set aside because tainted with the self-interest of the officials who participated in their preparation and adoption. Central to the attack on the validity of the local legislation is the inclusion in the industrial zone of lands owned by defendants Scott and Umstadter, and the exclusion therefrom of plaintiff's tract.
Washington Township is a rural, sparsely settled community in Morris County, comprising some 2,600 persons living in an area of 45 square miles. In 1954 the township, as yet unzoned, decided to adopt zoning, and to that end established a planning board to study the matter and make recommendations. The 1957 zoning ordinance reflected
almost three years' work by the board, assisted by county planning authorities and Dr. Edward B. Wilkens, Professor of Planning and Director of Planning Services at Rutgers University, and some of his students.
Faced with an increasing tax burden, apparently as a result of a decline in its agricultural economy, the township committee concluded that the solution of its fiscal problems lay in attracting industry. Accordingly, it also established an unofficial advisory body known as the Industrial Development Commission, to develop and execute plans for bringing industry to the township and to advise the governing body as to how this might best be done. One of the members of this commission was defendant Umstadter, whose land, together with the adjacent land of defendant Scott, was ultimately designated as one of the industrial zones.
There were five small "industries" in the township when the planning board initiated its study, and these included a creamery, a junkyard, and a fertilizer plant. The last mentioned was located on Scott's land, but was no longer in use at the time the ordinance was adopted. The apparent plan of the board was to locate these preexisting uses in industrial zones and, having in mind sites that would draw industry to the township, to seek offers from owners of large tracts who were willing to have their lands similarly zoned. Among those who came forward with offers were one Guerin, who soon after became a member of the planning board; defendants Scott and Umstadter, who offered a combined acreage of 1,000 acres upon solicitation by the board; and plaintiff, which had purchased a 132-acre tract in the northeastern area of the township in October 1956. Immediately after acquiring that tract plaintiff requested subdivision approval from the board, submitting plats and building plans. Although approval was granted, plaintiff did nothing pursuant thereto.
At a meeting held April 11, 1957 the planning board tentatively voted to zone 250 acres of the Scott-Umstadter property for industry. Actually, all this acreage belonged
to Scott. Two weeks later it similarly voted to place all of plaintiff's tract in an industrial zone. Somewhat smaller tracts owned by Guerin, by then a planning board member, and one Hemmings, another member, were industrially zoned. Hemmings' property, which was adjacent to an industrial zone in Chester Township to the east, already had a commercial use thereon.
With the zoning ordinance apparently ready for final drafting, the planning board scheduled public hearings on May 8 and 15, 1957. More than 200 residents attended, constituting about 10% of the township population and, obviously, a greater percentage of its adult population. Since there were relatively few residences in the area of plaintiff's tract, located in the so-called Naughright section of the township, many of those present at the hearings must have come from other areas of the municipality. The single serious objection to the zoning plan was the industrial zoning of plaintiff's property. The principal basis for this objection was that the Naughright section was beginning to take on the character of a high quality residential area, neighborhood values would depreciate, and the natural beauty of the countryside be seriously impaired were industry permitted on plaintiff's lands. After reconsidering the zoning plan in the light of these objections, the planning board removed plaintiff's tract from the industrial zones and re-zoned it for residential use. The zoning ordinance, as revised, was submitted to the township committee and ultimately adopted on June 27, 1957.
It appears there were no industries interested in locating in the township at the time the ordinance was passed. Sometime thereafter Umstadter, apparently in his capacity as a member of the Industrial Commission, received an offer from Fairlawn Industrial Park, Inc., to develop the Scott-Umstadter industrial zone as the Morris County Industrial Campus. However, the developer desired a larger site. It therefore wrote the planning board requesting that the area be enlarged. The matter was considered by the board
at its meeting of February 27, 1958, at which time it was voted to enlarge the Scott-Umstadter industrial center from 250 to about 600 acres. The board also considered letters received from plaintiff requesting that its land be considered for an industrial zone, and decided to hold them for later consideration in connection with the preparation of a township master plan. At its meeting of April 24, 1958 the board took up plaintiff's request for approval of its tract for industrial use and, after lengthy discussion and hearing the protests of more than 25 residents of the Naughright section, unanimously voted to reject the application. It also voted to recommend formally to the township committee that the Scott-Umstadter industrial zone be enlarged. On June 17, 1958 the governing body adopted an amendment to the zoning ordinance creating the 600-acre industrial tract.
There are about a dozen homes, most of them new, in the immediate vicinity of plaintiff's land in the Naughright section. A freight railroad line bisects the property for a distance of some 2,000 feet, and there are high tension lines on the tract. It is bounded by roads on two sides, by woods and a ravine on the third, and by a branch of the Raritan River on the fourth. Most of the tract is swampy, and at least half cannot be used for either industrial or residential development. Soil drainage is quite poor, and in most places below the minimum requirements for septic tanks that would be required for residential properties. Both plaintiff's expert Sussna, a planning and zoning consultant, and respondents' expert Wilkens, agreed that plaintiff's tract was not particularly appropriate for residential development. Wilkens was of the opinion that despite the railroad, river and high tension line features emphasized by Sussna, the property was not especially attractive for industrial use either.
The Scott-Umstadter tract is located near the center of the township, close to the most developed section known as Long Valley, and east of Middle Valley Road, one of the main township arteries. The freight line already mentioned
runs parallel to and west of this road. Fronting on the road is a church and the township's only grammar school, the industrial tract being about one-eighth mile from the rear lines of these properties. The township envisions a planned recreation area at this location which will serve as a buffer zone. A second line of the property is parallel to and about a quarter-mile from another main artery, Fairmount Road. Drainage is superior to that of plaintiff's tract. There are no high tension lines, but these can readily be supplied. Scattered residences, including those belonging to Scott and Umstadter, are separated from the industrial zone by several acres which serve as a buffer. The tract is apparently suitable for both residential and industrial use.
The Guerin tract of about 60 acres is located some distance to the south of Scott-Umstadter. Hemmings' property, as noted, adjoins Chester Township along the northeastern boundary of the municipality.
One who attacks a zoning ordinance as arbitrary or unreasonable has the burden of clearly showing that this is so. In the absence of proof possessing such quality, this court will not interfere with the policy determination of the municipal body. Kozesnik v. Montgomery Township , 24 N.J. 154, 167 (1957). Moreover, if the issue of conformity with the requirements of the Zoning Act is fairly debatable, the local legislative judgment prevails and our duty is to affirm it. Bartlett v. Middletown Township , 51 N.J. Super. 239, 259-261 (App. Div. 1958), certification denied 28 N.J. 37 (1958); Ward v. Montgomery Township , 28 N.J. 529, 539 (1959).
As we said in Jones v. Long Beach Zoning Board of Adjustment , 32 N.J. Super. 397, 405 (App. Div. 1954):
"* * * The decision as to how a community shall be zoned or rezoned, as to how various properties shall be classified or reclassified, rests with the local legislative body; its judgment and
determination is presumed to be reasonable and valid, will be conclusive, beyond interference from the courts, unless shown to be arbitrary, unreasonable or capricious. The burden of rebutting this presumption and establishing such ...