Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Labrecque, J.A.D.
Plaintiffs appeal from the dismissal of and denial of their motion to amend their complaint challenging certain zoning ordinances of the Borough of Mendham (hereafter the borough).
The borough is a residential community located some seven miles west of Morristown and bisected by State Highway Route 24. Situated in a hilly rural area, it is surrounded on three sides by the Township of Mendham (hereafter the township). Except for a new shopping center on Main Street
(Route 24) near the borough's eastern boundary, businesses serving local needs and small industrial uses are centrally located, principally in a two-block area bordering Main Street near its junction with Hilltop Road and Mountain Avenue.
In February 1965 the borough council enacted ordinance 2-65 which divided it into five residental zones, a business zone and an office building and research laboratories (OB-RL) zone. The latter zone included two distinct areas, one (area A) in the southwesterly section of the borough, consisting of an approximate rectangle bounded by the borough line on the west, the Morris County-Somerset County line on the south, Bliss Road on the east and Pleasant Valley Road on the north. Permitted uses within the OB-RL zone were office buildings for executive or administrative purposes and scientific engineering and research laboratories and their accessory uses. The ordinance prescribed a minimum lot area for this section of the OB-RL zone of 25 acres, a minimum floor area for buildings of 20,000 square feet, and stipulated that there should be no more than ten employees per acre and at least one off-street parking space for each two persons employed. A height limitation of 45 feet was placed on structures and they were required to be set back 300 feet from the public street. All site development plans were to be submitted to the borough's planning board for review prior to the issuance of building permits.
The second area (area B) included within the OB-RL zone, composed of 130 acres, was located in the northeast corner of the borough, west of Pitney Road and north of East Main Street. In this section the minimum lot area was fixed at ten acres and the maximum number of employees permitted at 15 per acre. A strip of land abutting the B area on its northerly border was rezoned from residence A, requiring a minimum lot size of three acres, to residence B, which required a one acre minimum. In December 1965 ordinance 12-65 was enacted amending ordinance 2-65 to authorize nursing homes as an additional use in the OB-RL zone.
Mountainside Road constitutes the northerly boundary of the borough and most of the plaintiffs, some of whom reside in the borough and some in the township, have homes on either Mountainside Road or Pitney Road. The latter with its extension constitutes the easterly boundary of the borough. None of them resides in the OB-RL zone.
On June 6, 1966, pursuant to a recommendation contained in the master plan adopted by the borough's planning board on November 9, 1965, a comprehensive restatement of the borough's then existing zoning ordinances was enacted as ordinance 9-66. In the new ordinance the OB-RL zone was separated into two zones, the "25 acre OB-RL zone" and the "10 acre OB-RL zone." Later, in June 1966 , to cure an inadvertent omission, ordinance 9-66 was amended by ordinance 11-66 to permit nursing homes within the ten-acre OB-RL zone.
On December 22, 1967 plaintiffs instituted the present action challenging ordinances 2-65, 12-65, 9-66 and 11-66 as arbitrary, unreasonable, not in accordance with a comprehensive zoning plan and not in furtherance of the objectives of zoning. They further alleged, as to ordinances 12-65, 9-66 and 11-66, that notice of the hearings thereon had not been given, pursuant to N.J.S.A. 40:55-53, to the clerk of the township, which extended to within 200 feet of the rezoned land. The absence of such notice was conceded by the borough.
On February 5, 1968, while the suit was pending, the borough adopted ordinance 1-68 which, plaintiffs concede, reiterated the provisions of ordinances 9-66 and 11-66. Thereafter defendants moved for summary judgment, and plaintiffs moved to supplement their complaint to include a challenge to the newly enacted ordinance. The court granted both the motion to amend to add an additional count and the motion for summary judgment as to the first four counts of the complaint. To the extent here relevant, it found that the action had not been instituted within 45 days as required by R.R. 4:88-15(a) and declined to disregard
the limitation or enlarge the time, as authorized by R.R. 4:88-15(c), finding that no substantial constitutional issue was involved. It went on to state that the failure to give notice of the hearings with reference to ordinances 12-65, 9-66 and 11-66 to the clerk of the township amounted to a procedural, rather than a jurisdictional defect. A subsequent motion for summary judgment as to the amended complaint challenging ordinance 1-68 was denied, the court stating that "In the event [the] later ordinance [1-68] is voided, the court feels that the earlier ordinance[s] would stand," ...