Halpern, J.c.c. (temporarily assigned).
This is an action in lieu of prerogative writs challenging the validity of Bernards Township Ordinance No. 77, an amendment to the zoning ordinance, which created a "Residence 20-Parking" zone. The amendment affected only four properties located adjacent to the township's business district in Basking Ridge.
At the request of both counsel, I inspected the area with them in order to better understand the testimony and the many exhibits in evidence.
Bernards Township, encompassing an area of approximately 23.5 square miles in the northern section of Somerset County, is composed almost entirely of residences and farms. The township's zoning ordinance provides for three small business zones, at Lyons, at Liberty Corner, and at Basking Ridge. The one at Basking Ridge is the largest and consists of a strip on both sides of South Finley Avenue (its main thoroughfare) for a distance of two blocks between Lewis and Oak Streets, bisected by Henry Street. Approximately one-half of the land zoned for business is actually used for that purpose, the remainder being occupied by church properties and residences.
South Finley Avenue runs in a generally north-south direction. Ordinance No. 77 deals only with the area on its west side, where the business zone is a strip approximately 280 feet in depth, with most of the South Finley Avenue lots extending the full distance. Henry Street runs west from South Finley Avenue some 500 feet, where it makes a full left turn and becomes Rankin Avenue. In this area, south of Henry Street, a row of residential lots behind the business zone fronts on Rankin Avenue.
North of Henry Street, the rear of the business lots borders directly on a narrow one-way street called Brownlee
Place. Brownlee Place meets Henry Street in a "T" intersection at a point approximately midway between South Finley Avenue and Rankin Avenue. The three properties on the west side of Brownlee Place, across the street from the rear of the business zone, were classified residential until rezoned by the challenged amendment to add parking as a permitted use. Further west, behind these Brownlee Place properties, is a tract of approximately 12 acres on which a public school is situated, with access from other streets not pertinent here.
The Somerset Hills National Bank, hereinafter referred to as the bank, is located on the southwest corner of South Finley Avenue and Henry Street, facing South Finley Avenue. The bank, through a wholly-owned subsidiary, the Someridge Corporation, owns a tract shaped like a reversed "L" with approximately 195 feet of frontage on South Finley Avenue and extending back the full distance along the south side of Henry Street to Rankin Avenue. Although this tract is designated as one lot on the township's tax map, it is better described as two lots on South Finley Avenue and one on Rankin Avenue, with Henry Street running along the northerly sides of the Rankin Avenue lot and the most northerly Finley Avenue lot. The building, occupied by the bank and a federal post office, is located on a relatively small portion of the tract, the remainder of which is vacant except for a gravel parking lot adjacent to the building.
The bank, through Someridge, has for several years contemplated erecting stores on vacant portions of the tract, as shown by drawings submitted to the township in various earlier proceedings and now part of the evidence in the instant case. The fact that the bank's Rankin Avenue lot has been in a residential zone has thus far thwarted execution of these plans. Parts of the zoning ordinance require that specified numbers of off-street automobile parking spaces be furnished for any new business buildings, and the only apparent way for the bank to utilize a maximum area of its two business lots for the proposed stores is to employ the
adjoining residential lot for parking, a use previously prohibited there. This lot is the fourth property covered by the challenged amendment, so the new "Residence 20-Parking" zone is essentially a strip which extends along the west side of Brownlee Place and then crosses Henry Street to take in the first lot on Rankin Avenue, owned by the bank.
Plaintiff, the owner of a residence on Rankin Avenue some 350 feet from the rezoned tract, has the necessary status to bring this suit. Speakman v. Mayor and Council of North Plainfield , 8 N.J. 250 (1951).
Plaintiff's first ground for attacking the amendment is that it was not validly adopted in compliance with R.S. 40:55-35, as amended by L. 1948, c. 305, which provides in part:
"* * * In case of a protest against such proposed change signed by the owners of twenty per centum (20%) or more * * * of the area of the lots or land included in such proposed change, * * * such change shall not become effective except by the favorable vote of two-thirds of all the members of the governing body * * * of such municipality."
At the public hearing on the amendment two separate petitions were filed with the township committee. The first, which directly opposed the amendment, was signed by owners of residential properties on Rankin Avenue and in other nearby neighborhoods. The second, with which we are primarily concerned, was instituted by a group of store owners on South Finley Avenue and was signed by all three owners of the involved Brownlee Place properties which, the township concedes, total much more than the statutory 20 per cent of the affected area. It will be helpful to quote this petition in full:
"We, the undersigned, for the reasons expressed below respectfully request the members of the Bernards Township Committee to reconsider their actions in proposing Bernards Township Ordinance #77 so that the present properties located on the Westerly side of Brownlee Place, located between the Southerly ...