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Koslow v. Municipal Council of Township of Wayne

Decided: July 31, 1968.


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


[52 NJ Page 443] This is a soil removal case, with broad planning, zoning and subdivision regulation connotations. It has had a tortuous history. In the current aspect, the defendant municipal governing body denied plaintiffs a permit to remove a large quantity of soil under the ordinance dealing with that subject. The Law Division, in this action in lieu of prerogative writ brought to review the municipal determination, disagreed with the findings of the local body on the evidence and directed the permit to issue. The Appellate Division, on defendant's appeal, reversed in an unreported opinion, holding that the trial court had substituted its judgment on the proofs for that of the municipal agency contrary to established principles of the scope of judicial review and that there was a reasonable basis for the municipal action.

Plaintiffs appealed to this court without seeking certification, purportedly on the ground that the case involves a constitutional question. R.R. 1:2-1(a). Their brief did not demonstrate the existence of the required "substantial" issue of this kind, Tidewater Oil Co. v. Mayor and Council of Borough of Carteret, 44 N.J. 338 (1965), and the appeal was subject to dismissal, but no such application was made. The oral argument disclosed that there is a fundamental question of law in the case, which had been obscured in the earlier stages of the controversy, but is now brought into sharp focus by subsequent ordinance amendments, and which had not been fully presented in the briefs.

That question is the right of a municipality to provide that, in a residentially zoned district, substantial soil removal shall be prohibited except to the extent determined by the Planning Board, in connection with a specific subdivision application, as necessary to reasonably develop the land involved, in the light of its natural terrain and topography.

The parties agree that it is the necessary underlying issue and may be determined in its present abstract status without further plenary hearing at the trial level. Supplemental briefs have been filed at our direction and, in view of the public interest involved, we will decide the point. Our conclusion thereon is in favor of the right and leads to an affirmance of the Appellate Division on that additional basis. We should say also that we are satisfied that tribunal was eminently correct in its reversal of the trial court and affirmance of the municipal action under the thesis upon which it considered the appeal. See Wulster v. Borough of Upper Saddle River, 41 N.J. Super. 199 (App. Div 1956), certification denied 22 N.J. 268 (1956); L.P. Marron & Co. v. Township of Mahwah, 39 N.J. 74, 83-84 (1963).

The question arises in the following context. Plaintiffs have owned since May 1964 a 46 acre tract of undeveloped land in the north central part of Wayne Township, Passaic County. This municipality is large in area and has been experiencing a great amount of residential development and

population growth. The tract in question is hilly, to an elevation of over 400 feet, and heavily wooded for the most part. A brook courses downward through one part in a kind of natural ravine. The area to the east and north is of substantially the same character for a considerable distance. The lower flat land to the south and southwest (part of it had been levelled to some extent) is occupied by a new high school and a housing development.

The tract has long been zoned for single-family dwelling use only. It is conceded that commercial soil removal has never been a permitted use in the district. The minimum lot size requirement is 30,000 square feet. At least one reason for this rather large size is the nature of the terrain and resulting development problems. The minimum lot size requirement in the flat area to the south is very considerably smaller.

The Township enacted a soil removal ordinance in May 1963. The measure was a typical and entirely valid one. See Fred v. Mayor and Council of Borough of Old Tappan, 10 N.J. 515 (1952); Wulster v. Borough of Upper Saddle River, supra (41 N.J. Super. 199); L.P. Marron & Co. v. Township of Mahwah, supra (39 N.J. 74).

The preamble recites a finding by the governing body that "the unregulated and uncontrolled relocation, filling, excavation and removal of soil on a large scale has resulted in conditions detrimental to the public safety, health and general welfare, substantially hampering and deterring the efforts of the Township of Wayne to effectuate the general purpose of Municipal Planning".

The first provision read at the time of adoption:

"No person shall excavate or otherwise remove soil for sale or for use on or off the premises from which the soil shall be taken, except in connection with the construction or alteration of a building on such premises and excavation or grading incidental thereto, where the volume of soil to be excavated is less than 1,000 yards, without first having procured permission therefor from the Municipal Council."

Beyond specifying the procedure to apply for a permit, general conditions, fees, performance ...

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