Conford, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.
This in lieu proceeding was instituted by resident taxpayers of the defendant township, contesting the validity of an amendatory zoning ordinance adopted on January 12, 1960, effective two days later. The major thrust of the amendment was to permit, subject to Board of Adjustment approval, the erection of multiple dwelling units or garden apartment developments in five of the township's eleven zoning districts; the ordinance also operated to rezone certain portions of highway property bordering Route 18 in the township.
In their complaint, plaintiffs challenged both the multiple dwelling and rezoning provisions of the amendment as arbitrary, unreasonable and not in accordance with a comprehensive plan. In addition, it was charged that the powers
delegated to the Board of Adjustment by the ordinance were ultra vires the authority of the Board. Plaintiffs also claimed that the ordinance was illegal and void in that it was adopted without duly published notice of the meeting for final passage, as required by law. The township building inspector was made a party defendant for the purpose of enjoining him from issuing any permits for the construction or erection of multiple dwelling units.
The trial judge held that the amendatory ordinance constituted in all respects a proper exercise of the municipal legislative power and he thereupon entered judgment for the defendants, from which plaintiffs here appeal.
Proper consideration of plaintiffs' appellate contentions necessitates a somewhat extended factual exposition of the events leading up to the amendment, for their assaults are focused as substantially upon the manner in which the legislation was enacted as upon its alleged deficiencies as written. As gathered from the affidavit of Mayor Louis F. May, Jr., the first zoning ordinance was adopted in the township in 1941, permitting "apartment houses" without either restriction or specified regulation. By amendatory ordinance in 1952, provision was made for multiple dwelling units on the condition that such projects meet certain enumerated standards. In 1956, a contract was entered into between the township and the State Bureau of Planning, for the initiation of detailed and comprehensive studies leading to the overhauling and modernizing of the zoning ordinance. After completion of the preliminary studies, and after numerous discussions and consultations involving the State Planning Board, the Township Planning Board, the Township Committee, and the Board of Adjustment, a comprehensive amendatory zoning ordinance was enacted on November 25, 1958.
The ordinance established eleven districts in the township, running the gamut from Single Family Rural Residence (R-1) to Heavy Industry (M-3). Framed in terms of permitted uses (all those not specifically sanctioned being
prohibited), it made no provision for multiple dwelling units. There is some dispute in the testimony as to whether the omission represented a deliberate policy determination on the part of the legislators and administrators or merely a decision to hold the issue in abeyance pending further study. (The question is significant only with respect to plaintiffs' claim of undue influence, to be discussed hereinafter.) Jess Gaynor, a member of the Board of Adjustment, testified that those discussing the matter "generally agreed * * * that we didn't specifically want multiple dwellings * * * [because] we felt that they were of no particular advantage at that time, because of the effect they would have on the school system, the tax setup, the fact that we did not have enough industry * * * to carry the garden apartments." On the other hand, the affidavit of Mayor May, the testimony of Raymond A. Woods, secretary of the Planning Board, and the minutes of the Planning Board meeting of October 16, 1958 support the position that the matter of garden apartments was purposely set aside for further study and was therefore omitted from the 1958 amendment in order that the general overhauling of the township's zoning laws not be delayed by this single aspect.
The inference to be drawn from the sum of the testimony is that the initial decision to omit mention of multiple dwelling units soon produced fears that the absence of express prohibition might lead to the commencement of such developments in any zone of the township. It was therefore decided that preparations should immediately be made for explicitly limiting or restricting such units. Minutes of the Planning Board meetings, admitted into evidence, as well as the testimony of various Township Committeemen and Planning Board members, confirm the conclusion that the question of garden apartments was an alive and recurring issue in the township throughout 1959. The subject was discussed at the regular Planning Board meeting of May 5, 1959; among the considerations mentioned were the percentage of land to be occupied by the developments, the
ratio of three, four and five room apartments, provision for off-street parking, landscaping of apartment projects, and the height of any proposed structures. On June 11, 1959 certain proposed zoning amendments, relating not only to multiple dwelling units but also to the zoning of certain highway property, and to minimum floor area, yard and lot area requirements in the various zones, were received by the Board from the Township Committee.
During June and July, the Committee's proposals were discussed in executive or "workshop" sessions by the Planning Board. Consideration of the proposals continued at the regular Planning Board meeting of August 18, 1959. At the regular Planning Board meeting of September 15, 1959, Q. Marshall Sachs, president of Rasac Holding Corp., a developer, appeared, spoke on the proposed amendments, and detailed the advantages to the community of garden apartments. The question of multiple dwelling units was again a subject of discussion at the Planning Board meetings of October 6, 1959 and October 14, 1959. On October 22, 1959 a revised draft of the ordinance was sent to the Township Committee on behalf of the Planning Board. The draft contained substantially the provisions that were later enacted, although, with respect to multiple dwellings, it provided for a maximum unit-per-acre density of twelve. The Committee received the recommendations of the Planning Board at its October 27 meeting, and at its next gathering, on November 10, decided to change the unit-per-acre maximum to fifteen.
On November 24, 1959 the amendatory ordinance was adopted by the Committee on first reading and was published according to law; the published notice established December 8, 1959 as the date for further public hearing on the ordinance prior to final passage. Since a large number of objectors, estimated at about 100, appeared at the December 8 meeting, and since the proposed amendment had provoked widespread controversy in the township, the Committee, on its own motion at the December 8 gathering,
adjourned discussion of the amendment to January 12, 1960 in order to allow further preliminary deliberation. On the latter date, after full and heated public discussion, the amendatory ordinance was adopted by a vote of four to one.
Plaintiffs' contentions on this appeal may be summarized as follows: (1) the amendatory ordinance is void because its passage was procured through undue influence of the governing officials, and the necessary votes were thus permeated with self-interest on the part of the latter; (2) the ordinance is void because proper public notice of the January 12 meeting was not given pursuant to the requirements of N.J.S.A. 40:49-2(b) and R.S. 40:55-34, thus depriving many members of the public of an opportunity to be heard; (3) the ordinance as enacted permits multiple dwelling units in all of the township's districts with the exception of the C-4 Commercial district, and, as such, it violates the statutory and constitutional requirements of zoning by districts; (4) the Board of Adjustment cannot legally be vested with the authority to approve or disapprove proposed multiple dwelling installations -- and the ordinance is for this reason void as an unlawful delegation of legislative power; and (5) certain zone changes along Route 18 were not in accordance with any comprehensive plan and were enacted without any legislative awareness of the exact nature and location of the area rezoned.
Plaintiffs have endeavored to spin, circumstantially, an elaborate web of political intrigue to support their assertion that the amendatory ordinance was enacted as a result of undue influence exercised upon members of the governing body and the Planning Board (the township officialdom). The center of the web is a dinner, held at a local restaurant in mid-August of 1959, to which were invited members of the Township Committee, the Planning Board and the Board of Education. (A majority, but not all of these members,
attended.) The invitation was extended by Morris Spritzer, Esq., on behalf of his client, the aforementioned Rasac Holding Corp., which paid for the dinner. The corporation had been formed on July 30, 1959, had acquired 27 acres of land in the township in early August of 1959, and was quite obviously interested in the development of apartment units.
Spritzer testified that the purpose of the dinner meeting was to discuss the proposed amendment relative to multiple dwelling units and to present to the Township officials the builder's views on the subject. Spritzer recalled that he had advised those present of his client's interest in development of its tract at the rate of 15 units per acre, and that he had sought to apprise them of the type of ordinance that would be economically feasible to a builder. He explained that he had called the dinner meeting, rather than attending regular public meetings of these bodies, because
"it was a matter of my personal judgment that it would be better to have all three boards present at one time, rather than to go back and forth between three boards different evenings. It was to be a sensible discussion of the pros and cons of the amendment, and in my opinion, a matter of personal judgment, I thought it would be better if I could have everybody in the room, out in the open, all at one time, so that they could hear each other's views."
Subsequent to the dinner, Spritzer did attend a regular Planning Board meeting, at which he repeated his attempt to convey the message that "an ordinance that wasn't economically feasible to a builder was a mere sham, and that if a builder couldn't get an economic return from the type of construction he was going to put on the building, they might as well bar garden apartments forever."
Plaintiffs spell out undue influence from the circumstances of this "gratuity" (the dinner meeting), the fact that the ordinance contained the exact units-per-acre maximum suggested on behalf of Rasac, the lack of comprehension of the Committeemen, when questioned at trial, as ...