For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None.
Plaintiff filed a complaint seeking reinstatement of a resolution of the Pequannock Township Council which granted him a franchise to build and operate a garbage incinerator and which was later rescinded by the Council. The complaint also sought damages for the rescission. After trial the Superior Court, Law Division, entered judgment for the defendants. We certified plaintiff's appeal on our own motion prior to argument in the Appellate Division.
On April 29, 1964, the plaintiff applied to the Council for a franchise, pursuant to N.J.S.A. 40:66-6, to build and operate a garbage incinerator on a tract of land in the township.*fn1 On June 9, 1964 the Council, by resolution, granted plaintiff a "franchise to build and operate an incinerator or waste disposal plant for a period of twenty (20) years in accordance with Township ordinances and all State codes and regulations."
Within the next two weeks news of the proposed incinerator spread, and a large number of the township's residents expressed strong disapproval of the Council's action. This disapproval led to a public protest meeting which was attended by several members of the Council. Thereafter, the Township Clerk conducted a post card poll of the taxpayers which confirmed the existence of an overwhelming opposition to the construction of a waste disposal plant in the township.
On July 27, 1964 the plaintiff notified the township in writing that he was accepting the franchise as required by N.J.S.A. 40:66-6. On August 6, 1964, the Township Clerk notified the plaintiff that the Council at its regular meeting on August 11, 1964, would consider rescinding the resolution of June 9. At the meeting on August 11 the Council voted to take this action and voided plaintiff's franchise. It seems clear from the record that between July 27, the date of plaintiff's acceptance, and August 11, the date of the rescinding resolution, the plaintiff did not take any significant action toward the completion of his project.
In dismissing the complaint the trial judge found that the resolution of June 9 was based upon an understanding by all parties that the proposed incinerator would be "nuisance free," even though this understanding was not explicitly set forth in the resolution. He concluded: "The failure of the parties to clarify what they meant by this extremely ambiguous and subjective gauge renders the agreement unenforceable."
On this appeal plaintiff contends the trial court erred in holding that the terms of the franchise were unenforceably vague. He further contends that his acceptance of the franchise created a binding contract which the township could not unilaterally rescind without just cause. The defendants assert that the action of the trial court was correct and that, in any event, the rescission was a proper exercise of the township's police power.
At the oral argument before us reference was made for the first time to the township's zoning ordinance, and we ordered a reargument for the purpose of considering the effect of the ordinance upon this case. On the basis of new information concerning the township's zoning ordinance, we find it is unnecessary to consider the issues originally raised on this appeal.
The land designated as the site of the proposed incinerator in the resolution granting the franchise is in an industrial
zone. At the time of the resolution that zone was governed by the following restriction:
"In an Industrial Zone no building or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used for any of ...