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Barone v. Township of Bridgewater

Decided: July 6, 1965.

SAM BARONE ET AL., PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF BRIDGEWATER, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.

Hall

[45 NJ Page 225] This is a highway zoning case. The locale fronts the same road -- U.S. Highway Route 22 -- as that involved in Wilson v. Borough of Mountainside, 42 N.J. 426 (1964), but some 12 miles farther west in Bridgewater Township, Somerset County. The suit attacks the residential-agricultural use classification of the most easterly half mile

of the highway frontage in the township running from the Green Brook Township boundary west to the Mountain Avenue overpass intersection. The classification was imposed by the township's original ordinance in 1937 and continued in essence by the comprehensive revision thereof adopted in 1962. Plaintiffs are some, but not all, of the abutting property owners in the strip on both sides of the highway. The trial court found the zoning unreasonable as applied to plaintiffs' lands. The Appellate Division reversed in an unreported opinion. We granted certification on the plaintiffs' application. 43 N.J. 357 (1964). The basic issue, as is usual in this type of case, is whether the challengers have sustained their rather heavy burden of demonstrating that the municipal ordinance classification is so far without reason and arbitrary as to require invalidation.

Since the complaint is exceedingly sketchy and the pretrial order no more informative, plaintiffs' thesis has to be gathered from their proofs and argument. Although the testimony of some of the plaintiffs themselves is not entirely consistent with the theory advanced by their counsel and expert witnesses, it is plain enough that the case was presented below and is argued here primarily on the contention that the impact of this busy highway on abutting lands in the area in question, in and of itself and essentially without regard to other considerations, requires such lands, to a depth of at least 400 or 500 feet, to be zoned for commercial and industrial uses. Plaintiffs' counsel at the trial spoke of their aim as "to open it wide open for business." Indeed, if plaintiffs' theory were to be accepted, it is difficult to imagine lands anywhere fronting on such a road which would not have to be so zoned -- a conclusion we are not prepared to accept as an abstract proposition. Rather the land use regulation of such properties should be determined by consideration of a congery of the particular historical, geographical and economic facts in each instance.

The trial judge professed not to rely on such a broad approach, mentioning some business uses present in the area

and nearby, the general lack of development of the affected lands over the years and his opinion that "the possibility of sale to anyone desiring residential property" was "extremely remote," despite substantial municipal testimony tending oppositely. Nonetheless, the wider thesis is not entirely absent from his conclusions, as witness the emphasis placed on "the devotion of land to its most appropriate use and the general character of the district and its peculiar suitability for a particular use."

The Appellate Division, in reversing, dealt with the matter in a very general fashion, relying mainly on the presumption of validity. Despite the involvements of the case, there was little discussion of the facts or the various considerations to be taken into account. The court simply concluded "* * * that there is at least a debatable question that the ordinance in dispute is in accord with the comprehensive plan for the orderly development of land uses within Bridgewater Township * * *." Although Wilson v. Borough of Mountainside, supra, 42 N.J. 426, was decided before this cause was argued in the Appellate Division, it is not cited nor is the opinion's conclusion considered in the light of our holding in Wilson concerning the relationship between a comprehensive municipal zoning plan and the ordinance use classification of a particular area. It was there said: "* * * it is elementary that every district use classification is not saved simply because it is part of a comprehensive community plan. The plan to be a valid and effective influence in support of zoning regulations must not be a capricious one and its existence will generally not ipso facto insulate from scrutiny or invalidity the use classification of a substantial area which is established to be realistically unreasonable." 42 N.J., at p. 449. In view of the Appellate Division's manner of treatment, we feel obligated to review the factual and other considerations more fully than generally is the case when we are passing upon a determination of that tribunal in a zoning controversy. Cf. Tidewater Oil Co. v. Mayor and Council of Carteret, 44 N.J. 338, 344-345 (1965).

In Wilson, we described in some detail Route 22, its traffic load, and the present state of the almost solid commercial and industrial development of every kind and description along its frontage west from the intersection with U.S. Route 1 near Newark Airport. 42 N.J., at pp. 434-435. That description need not be repeated here. The important thing is that the intense concentration of such roadside uses rather abruptly stops at the Green Brook Township -- Bridgewater Township line, the easterly end of the area here in question. While the volume and nature of the traffic continues westward for several miles further, the break in abutting uses is obvious to the observer. From this point on for the eight or nine miles of the course of Route 22 through Bridgewater, highway development has not been extensive or cluttered except for a relatively short distance in the general area where the road adjoins the Borough of Somerville and other through highway routes intersect, in which section a regional business zone of considerable size was provided by the 1962 ordinance. The reason for the difference between Bridgewater and communities to the east is historical.

Route 22, originally known as State Highway 29, was built through the eastern half of Bridgewater Township about 1930. It ran a virgin course north of the settled sections, through vacant, essentially rural, land. Although there was no township zoning until 1937, only a few business structures were erected along it in the early years. The first zoning ordinance (1937), we are advised, placed the whole area through which the road passed in a residential-agricultural zone. Whether that classification was and remained justified for every foot of township highway frontage is beside the point. The fact would appear to be that the township authorities then, with some vision, decided to prevent the highway blight which, as related in Wilson, has since descended upon the municipalities to the east adopting the opposite policy of encouraging or tolerating beyond redemption highway commercial and industrial development by one means or another, and to seek to maintain the highway for its true function of

transportation of people and goods rather than as a "Main Street" as well. To be particularly stressed is that Bridgewater's highway zoning was not appreciably broken down by the granting of indiscriminate variances or other devices. Few variances were allowed and, while until about the time of the 1962 revision there was no great amount of residential building along the highway, most nonresidential uses pre-existed the 1937 ordinance and were ...


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