Civil action in lieu of prerogative writs.
Feller, J.c.c. (temporarily assigned).
Plaintiff commenced this action in lieu of prerogative writs and in the first count of the complaint alleges that the adoption of ordinance No. 59-7 by the Cranford Township Committee on June 23, 1959 was defective and is utterly void and ineffective in that, in violation of R.S. 40:55-35 (as amended by L. 1948, c. 305), the said ordinance was not first submitted to the planning board for consideration and report as to its approval or disapproval or suggestions thereon before the adoption of said ordinance.
Defendant denies the contentions of the plaintiff as set out in the first count.
Plaintiff moves for summary judgment in his favor on the first count of the complaint on the grounds that ordinance No. 59-7 adopted by the Township Committee of the Township of Cranford on June 23, 1959 was defective and void because said ordinance was not first submitted to the planning board of said township for consideration and report as to its approval, disapproval or suggestions thereon before the adoption of said ordinance, in violation of the provisions of R.S. 40:55-35 (as amended by L. 1948, c. 305).
R.S. 40:55-35 provides as follows:
"Such regulations, limitations and restrictions may be amended, changed, modified, or repealed, and the boundaries of such districts may be changed, by ordinance, but no amendment or change shall become effective unless the ordinance proposing such amendment or change shall first have been submitted to the planning board, when such board exists, for approval, disapproval or suggestions, and the planning board shall have a reasonable time, not less than thirty days, for consideration and report, and in the case of an unfavorable report by the planning board such amendment shall not become effective except by a favorable vote of two-thirds of the governing body."
The contentions of the parties were set out in affidavits filed. The plaintiff, a property owner, contends that the minutes of the Township Committee of the Township of Cranford for the meeting of June 9, 1959 recite that said ordinance was introduced on first reading but that said minutes do not show that the ordinance was submitted to the township planning board for approval, disapproval or suggestions. The plaintiff further contends that the minutes of said township committee for the meeting of June 23, 1959 recite that the ordinance was read for the second time and adopted by said township committee but that said minutes do not reveal that the ordinance was officially referred by the township committee to the planning board prior to the second reading, nor do said minutes show that the ordinance was approved by the planning board either orally or in writing, and that said minutes do not recite
the receipt of any report on the said ordinance from said planning board, either orally or in writing, or that the ordinance was submitted to the planning board at any time.
The plaintiff relies on Hasbrouck Heights Hospital Association v. Hasbrouck Heights , 15 N.J. 447 (1954), and also Wollen v. Fort Lee , 27 N.J. 408 (1958).
The defendant contends that the Township of Cranford, early in 1958, decided that rather than continuing to amend its original zoning ordinance, it would be better to adopt an altogether new one. It employed, pursuant to ordinance, planning consultants in March 1958. They met many times with the township committee, the planning board, the tax assessor and the township engineer, board of adjustment, building inspector and attorney. The consultants submitted a draft for a general zoning ordinance. After study of it by all of the above officials, they made further suggestions. The consultants thereafter submitted a second draft to incorporate those suggestions.
A synopsis of the proposed ordinance was published in the Citizen and Chronicle , a local newspaper, in April 1959, and on May 7, 1959 a public forum was held and, as the result of suggestions received, further changes were made in the second draft. In its final form it was apparently referred by the township committee to the planning board for approval.
The defendant further contends that the planning board reported its approval orally through a member, who was also chairman of the township committee -- at the executive session of the township committee -- prior to the first reading of the proposed ordinance on June 9, 1959 and again at a public hearing on June 23, 1959, prior to its final reading, when it was passed, and that the approval by the planning board took place on May 14, 1959. These contentions are backed by several affidavits, one by a former mayor. Attached to his ...