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Mulligan v. City of New Brunswick

Decided: March 19, 1964.

RICHARD V. MULLIGAN, ET AL., PLAINTIFFS,
v.
THE CITY OF NEW BRUNSWICK, A MUNICIPAL CORPORATION OF THE COUNTY OF MIDDLESEX AND STATE OF NEW JERSEY, DEFENDANT



Halpern, A.j.s.c.

Halpern

[83 NJSuper Page 186] This is the return day of plaintiffs' motion for summary judgment. Plaintiffs are residents and taxpayers of the City of New Brunswick who, on September 17, 1963, brought this action in lieu of prerogative writs challenging the validity of a new comprehensive zoning ordinance of the City of New Brunswick adopted on August 6, 1963. The plaintiffs contend the entire ordinance is invalid because prior to its adoption the governing body did not submit

it to the existing city planning board, as required by N.J.S.A. 40:55-33 and 40:55-1.8. Defendant city contends there is no legal requirement to refer the proposal to the planning board for consideration, and argues that it complied with the spirit of the law when a "Mayor's Advisory Committee" was created in December 1959 to assist in the preparation of the new ordinance.

The pertinent undisputed facts may be briefly stated. In 1946 the defendant adopted a comprehensive zoning ordinance and thereafter appointed a planning board in accordance with the then existing statutes. In June 1954 the governing body adopted a city planning board ordinance pursuant to the new Municipal Planning Act of 1953. It continued the planning board then in existence. The 1954 ordinance specifically empowered the planning board to serve as the "Zoning Commission"; it ordained that the board would consist of nine members, divided into four classes; it gave the board broad power to plan for "the development of the City and its environs which will, in accordance with present and future needs, best promote health, safety, morals, order, convenience, prosperity and general welfare as well as efficiency and economy in the process of development and the maintenance of property values previously established." The board was authorized to investigate, make maps, reports and recommendations. The mayor was authorized to appoint a citizens advisory committee to assist or collaborate with the planning board, but such committee to have no power to vote or take any other action required of the planning board. The board was "designated as the official agency to prepare, adopt and to administer a master plan for the city of New Brunswick."

In December 1959, despite the existence of a duly constituted planning board, the mayor appointed a citizens advisory committee to consider completely rezoning and replanning the City of New Brunswick. This committee consisted of two members of the existing planning board, the secretary of the board of adjustment, a member of the parking authority, the planning director of the city, and the city attorney. This

committee held more than 70 meetings over a space of 3 1/2 years. It held five public hearings between August 16 and September 25, 1962. It met with various city agencies, including the planning board. In January 1963 it submitted a draft of a new zoning ordinance to the governing body.

On June 18, 1963 the city passed on first reading its new comprehensive zoning ordinance, and on August 6, 1963 it was adopted on final hearing and duly published. This new ordinance, before its adoption, was never referred to the planning board; as an official body, the planning board never gave consideration to the proposed ordinance, it never held hearings thereon, and it never made any report or recommendations to the governing body.

The issue on this motion for summary judgment is a narrow one. Assuming all the foregoing facts to be true, and assuming further that the citizens advisory committee competently performed its assigned task, is the ordinance of August 1963 valid even though the planning board was bypassed?

I approach my decision fully aware that a motion for summary judgment is granted with much caution; where facts are disputed it should not be granted; all doubts are resolved against the moving party; and it is granted only if the pleadings and proofs show palpably that there is no genuine issue as to any material fact. By these standards this case is ripe for decision.

A brief legislative history of the creation of planning boards will be an aid to an understanding of this decision. In 1928 the concept of zoning was introduced in New Jersey. The Legislature empowered the municipalities in the State to adopt ordinances looking to their orderly growth and development. An integral part of the legislative plan was that a designated public body give consideration to any proposal to zone a community, hold hearings and make recommendations to the governing body. R.S. 40:55-33 passed in 1928 authorized municipalities to appoint such bodies and called them "zoning commissions." In 1948 this law was amended, and

for our purpose the change made permitted the public body to be known as a "zoning commission" or a "planning board." In 1953 the Legislature adopted the present comprehensive Municipal Planning Act. N.J.S.A. 40:55-1.1 et seq. This new act repealed the provisions of the earlier law, namely R.S. 40:55-1 to 40:55-21, inclusive. The new act was designed to support and supplement the existing zoning statutes -- obviously the zoning and planning statutes complement each other and are in pari materia. This new act gave even broader powers to municipalities and planning boards. It permitted municipalities to continue with their existing zoning ordinances and provided for ...


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