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Cochran v. Planning Board

Decided: March 29, 1965.


Civil action in lieu of prerogative writs.

Feller, J.s.c.


This is an action in lieu of prerogative writs challenging the adoption of a master plan by the Planning Board of the City of Summit and seeking to enjoin the city and its agencies, boards and officials from implementing the master plan in any way. In particular, plaintiffs object to that part of the plan which would permit an expansion of the Ciba Corporation's parking area and research and office space into the residential area which adjoins the rear of plaintiffs' property.

Plaintiffs are citizens, taxpayers and owners of lands located at 249 Kent Place Boulevard in Summit. Their property is adjacent and contiguous to property owned by the Ciba Corporation (hereinafter Ciba). Plaintiffs' premises and that portion of the Ciba tract in question are presently in the A-15 zoning district, which is limited to one-family residences with a minimum lot area of 15,000 square feet. Prior to 1958 the Ciba tract was in an A-10 zone, which was limited to one-family residences with a minimum lot area of 10,000 square feet. The tract is bordered on three sides by one-family residences and is presently subject to enforceable deed restrictions

which limit the use of the tract to the erection of one-family residences until 1975.

On December 9, 1963 the defendant planning board adopted a master plan for the city, which provided in part that the Ciba tract, namely, 63 1/2 acres in the A-15 zone, should be rezoned for parking areas and research and office building use. This rezoning is for the purpose of providing for the eventual expansion therein of Ciba's existing operations. The plan requires a 125-foot buffer zone, which would separate the rear line of plaintiffs' property from the proposed Ciba construction. This zone would contain trees, shrubs and a screen, all of them calculated to preserve the existing residential atmosphere of the area.

Plaintiffs claim that the adoption of the master plan is arbitrary, discriminatory, capricious, unreasonable and an abuse of the planning board's discretion; that it is illegal because it constitutes spot-zoning of the Ciba tract for the benefit of Ciba, and because it is contrary to the provisions of the Municipal Planning Act, N.J.S.A. 40:55-1.1 et seq.; that it was procedurally defective because it was adopted on improper notice, ten days' notice not having been given of the December 9, 1963 hearing at which the plan was adopted, as required by the act, and that the planning board was illegally constituted. Plaintiffs further contend that the master plan was an abuse of discretion in that it was contrary to the expressed wishes of the citizens of the city made known at the hearings thereon and prior thereto; was contrary to the purpose of the plan to preserve the already established pattern of the better single-family areas of Summit; was contrary to the general welfare and health of the citizens; was ultra vires the planning board's power, and did not conform to the character of the neighborhood.

Plaintiffs also contend that the master plan is confiscatory in that it destroys existing property values to the special damage of plaintiffs, in violation of N.J.S.A. 40:55-1.12, which requires that a master plan preserve property values previously established. The action of the board was allegedly based

on insufficient and incompetent facts and findings and on insufficient surveys and studies, in violation of N.J.S.A. 40:55-1.12. Plaintiffs claim that their personal and property rights have been violated in contravention of the New Jersey and Federal Constitutions. They also contend that the master plan, especially the section which deals with the Ciba tract, is invalid because of a conflict of interest on the part of two members of the planning board. The contention is that board chairman Hazen was the publisher of a magazine in which the Ciba Corporation advertised, and that board member Holmes was called by Ciba to investigate properties and their purchase in the area of the rezoning, and that he has done appraisal work for which he was paid and acted as broker for Ciba's house-buying personnel for which he received commissions; also, the fact that Holmes is presently managing properties for Ciba, after the adoption of the master plan, is alleged to be a further conflict of interest because it is in the nature of a reward.

The last contention raised by plaintiffs is that the planning board and the City of Summit are equitably estopped from the adoption and implementation of the master plan because of misleading representations by the city and its agencies and officials, and by the zoning ordinance, to the citizens and property owners and their reliance thereon.

In January 1962 the planning board began to consider the master plan with the aid of a planning consultant, Charles K. Agle. Agle was engaged pursuant to the adoption of an appropriate ordinance, and he and the city executed a contract on January 23, 1962. In April 1963 the planning board presented a preliminary master plan at a public meeting, properly advertised, to be held at the high school.

Defendants contend that the master plan was properly adopted at a meeting held on December 9, 1963; insist there was proper notice of the meeting, and that the meeting was a continuance of a previous one held on November 26, 1963. No minutes were kept of the latter meeting; however, a stenographic transcript was made. There is some controversy as

to whether that meeting was adjourned at the point where the transcript ends, or whether it was continued after the shorthand reporter left, with the understanding that it was to be continued on December 9. Defendants deny that the December 9 plan is different from the plan thereafter published by the city as the final master plan, and contend that the maps referred to in the draft adopted have been consolidated (two instead of three), but that the substance of the two maps finally produced is exactly the same as the three maps in the preliminary proposal.

Defendants also argue that there is no conflict of interest on the part of any members of the planning board and that there has been no destruction of property values. Moreover, they say that plaintiffs are premature in bringing their suit because the proposed master plan has not yet been enacted as an ordinance and, consequently, it is of no binding effect upon the city.

Defendants further contend that the plan was the result of a comprehensive study by the planning board which commenced in January 1962 and terminated on December 9, 1963, after an average of a meeting every two weeks with interested persons and citizens. They say that all the work and the final plan are in accordance with the requirements of N.J.S.A. 40:55-1.1 et seq.

A review of the evidence indicates that the following questions should be resolved: whether the planning board had the authority or power to adopt a master plan under the ordinance setting up the board; whether the plaintiffs' property has been harmed or damaged by the adoption of the plan or whether their suit is premature; whether the plan is arbitrary, capricious, unreasonable, or an abuse of discretion; whether, in its treatment of the Ciba tract, the plan is an example of spot-zoning; whether the plan was adopted by the planning board in accord with the appropriate statutes, and, finally, whether there was a conflict of interest on the part of several members of the planning board.


Initially, plaintiffs contend that the ordinance of March 16, 1954, which created the planning board of the City of Summit, did not give the board the power to prepare and adopt a master plan; furthermore, they contend that since no other ordinance granted this power to the board, the provisions of N.J.S.A. 40:55-1.3 have been violated by such preparation and adoption, and that the master plan should be set aside as ultra vires the power of the planning board. N.J.S.A. 40:55-1.3 provides in relevant part that:

"The governing body may by ordinance grant any of the powers exercisable by a planning board to a planning board continued by section twenty-seven of this act or to be created under section four of this act, but no particular power may be exercised until expressly granted by ordinance and until compliance is made with the conditions, standards, procedures and regulations enumerated in the sections describing such power." (Emphasis added)

The defendants rely in part on the passage of an ordinance by the Summit governing body on December 19, 1961, which made an appropriation for the engagement of special consultants for the preparation of a master plan. It is argued that this ordinance is sufficient to satisfy the demands of N.J.S.A. 40:55-1.3. The ordinance provided:

"Section 1. That pursuant to Chapter 48, P.L. 1956, the sum of $24,000 is hereby appropriated for the engagement of special consultants for the preparation and the preparation, of a master plan or plans, when required in order to conform to the planning laws of the State, and shall be deemed an emergency appropriation as defined and provide [sic] for in R.S. 40:50-12.

Such appropriation and/or the 'special emergency notes' authorized to finance the appropriation shall be provided for in succeeding annual budgets by the inclusion of at least 1/5 of the amount authorized pursuant to this act.

Section 2. This ordinance shall take effect immediately after final passage and publication as provided by law."

If the above ordinance does not by implication grant the planning board power to prepare and ...

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