This matter is before the court on the return of an order to show cause why defendant, County Clerk of Monmouth County, should not be required to place on the ballot for the general election to be held November 7, 1972 the question: "Shall the Eatontown Zoning Ordinance be changed to allow a second major regional shopping center in the Borough of Eatontown, N.J."
On April 26, 1972 a complete revision of the Eatontown zoning ordinance was introduced and passed on first reading at a meeting of the Eatontown governing body. On August 30, 1972 the governing body adopted the ordinance as introduced, with certain amendments, laying the matter over for second reading, public hearing, and final consideration of the amendments.
The governing body gave particular attention to the rules and regulations affecting the B-3 zone (regional shopping area), and the extent of the district to which those rules and regulations should apply. At the public hearing and at regular meetings of the governing body, various opinions for and against the rules and the extent of the B-3 zone have been expressed.
On August 9, 1972 a resolution was introduced and seconded to initiate a non-binding referendum under N.J.S.A. 19:37-1. Of the five council members present, two voted for and three voted against the resolution.
On September 25, 1972 a petition signed by 550 registered and qualified voters was presented to the governing body at its regular meeting. The petition states:
Pursuant to N.J.S.A. 19:37-1.1, we the undersigned registered voters of the Borough of Eatontown request the Mayor and Council of the Borough of Eatontown to place upon the ballot in the November 1972 general election the following question:
Shall the Eatontown Zoning Ordinance be changed to allow a second major regional shopping center in the Borough of Eatontown, N.J.
The governing body thereupon adopted a resolution:
WHEREAS, 10% or more of the registered voters have requested the following question pertaining to the internal affairs of the Borough of Eatontown be submitted to a vote of the electors in the Borough;
NOW, THEREFORE, BE IT RESOLVED by the governing body that the Clerk of the County of Monmouth be requested to print on the official ballot in the next ensuing general election, the following question:
"Shall the Eatontown Zoning Ordinance be changed to allow a second major regional shopping center in the Borough of Eatontown, N.J."
On October 2, 1972 not yet approved minutes of the September 25 meeting containing the resolution were submitted to defendant. The Clerk of Elections and the Assistant County Counsel in a conference with the Borough Attorney concluded that the request that the question be placed on the November ballot did not comply with N.J.S.A. 19:37-1 et seq. On October 4, 1972 plaintiff received a letter from the Clerk of Elections advising that ...