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Wital Corp. v. Township of Denville

Decided: December 6, 1966.

WITAL CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
THE TOWNSHIP OF DENVILLE, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT



Sullivan, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

Plaintiff owns 33 acres of land in Denville. Under the comprehensive revised zoning ordinance adopted by the township on July 22, 1964, that property was included in a R-3 zone so that the property could be subdivided -- as it could have been under the township's prior zoning ordinance -- into building lots with a minimum lot area of 7,500 square feet within 125 feet of the front street property line.

On October 7, 1964 and March 17, 1965 the township amended the July 1964 zoning ordinance. Among other things, the amendments placed approximately 99 acres, including plaintiff's 33 acres, in a R-2 zone, in which building lots are required to have a minimum lot area of 15,000 square feet within 150 feet of the front street property line. The effect of the amendments was to reduce the number of building lots into which plaintiff's property could be subdivided.

Plaintiff attacks the validity of the amendatory ordinances. Although plaintiff also urges that the changes in minimum lot area accomplished by the amendatory ordinances are arbitrary and unreasonable and were adopted "without any reasonable

consideration of the purpose of zoning and statutory requisites to its validity," its principal contention is that the ordinances in fact constitute an abuse of the zoning power. Plaintiff charges that the ordinances were adopted not by reason of zoning considerations but for the purpose of depressing the value of plaintiff's property so that the township and its board of education, which seek to acquire a large portion of the property for school and park purposes, may obtain it at a lower price.

If plaintiff's charge is true, it is entitled to an adjudication that the amendatory ordinances are void, and this without reaching the question of whether the ordinance is otherwise arbitrary and unreasonable.

As was said in State ex rel. Tingley v. Gurda, 209 Wis. 63, 243 N.W. 317 (Sup. Ct. 1932):

"The zoning power is one which may be used to the great benefit and advantage of a city, but, * * * it is a power which may be greatly abused if it is to be used as a means to depress the values of property which the city may upon some future occasion desire to take under the power of eminent domain. Such a use of the power is utterly unreasonable, and cannot be sanctioned." (at p. 320)

See also Morris County Land, etc. v. Parsippany-Troy Hills Tp., 40 N.J. 539, 554 (1963); Plainfield v. Middlesex Borough, 69 N.J. Super. 136 (Law Div. 1961).

The trial court ruled that the proof offered by plaintiff "falls far short" of establishing the alleged abuse of the zoning power. We do not agree.

While the master plan standing alone would not be evidence of the present intention of the municipal bodies to acquire the property for school and park purposes, such proof is to be found in (a) the resolution adopted by the board of education on June 15, 1964, expressing the board's intention to acquire the property for use as a school site; (b) the resolution adopted by the township committee on June 17, 1964, expressing its ...


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