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Township of Sparta v. Spillane

Decided: October 25, 1973.

THE TOWNSHIP OF SPARTA, IN THE COUNTY OF SUSSEX, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAWRENCE SPILLANE, ROY CONIGIOONE, JOHN DECKER, ARTHUR E. WALTERS, AND MARSHALL JOHNSON, DEFENDANTS-APPELLANTS. TOWNSHIP OF MOUNT OLIVE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND RICHARD I. MIDGETTE, GEORGE D. SWANSON, ANN L. MADDEN, WALTER LATA AND DANIEL F. LEAHY, BEING THE COMMITTEE OF THE PETITIONERS, AND THE TOWNSHIP CLERK, GRACE HILPERT, PLAINTIFFS-APPELLANTS, V. LAKELAND INDUSTRIAL PARK, INC., A NEW JERSEY CORPORATION, AND AMUSEMENT CORPORATION OF AMERICA, A DELAWARE CORPORATION, DEFENDANTS-RESPONDENTS



Carton, Seidman, and Goldmann. The opinion of the court was delivered by Carton, P.J.A.D.

Carton

The issue to be resolved in these appeals is whether the referendum procedure provided for in the Faulkner Act applies to an amendment to the zoning ordinance of a municipality which has adopted the provisions of that act. The Township of Sparta and Township of Mount Olive cases involve this identical issue. Consequently they will be considered together, although they have not been formally consolidated.

Sparta has operated since 1960 under the Council-Manager Plan B of the Faulkner Act, N.J.S.A. 40:69A-99 et seq. On April 12, 1972 the township council adopted an amendment to its zoning ordinance authorizing a Planned Unit Development (P.U.D.) pursuant to N.J.S.A. 40:55-55 to 67. The plans for the P.U.D. were originally proposed by a subsidiary of a large corporation owning about 2,000 acres in Sparta.

The amendatory ordinance was referred to and acted upon favorably by the planning board after extended public hearings. Thereafter defendants in the Sparta action filed a petition with the municipal clerk seeking a referendum pursuant to N.J.S.A. 40:69A-185. The petition was found sufficient by the township clerk to comply with N.J.S.A. 40:69A-187, whereupon Sparta Township sought a declaratory judgment to determine whether the referendum provisions

of the Faulkner Act were applicable to amendments of a zoning ordinance. The trial judge granted the township's motion for summary judgment, holding that such provisions were not applicable.

Mount Olive Township operated under the Mayor and Council Plan E of the Faulkner Act, N.J.S.A. 40:69A-68 to 73. On August 25, 1972 the township council, over strong opposition, adopted an ordinance amending the township zoning ordinance by establishing a new zone denominated C-R (Commercial-Recreational). Permissible uses in this zone included permanent year-round or seasonal amusement parks. Two of the defendants in the Mount Olive case own about two-thirds of the land in the newly created C-R zone on which they intend to construct and operate a major amusement park. The lands in question are located near Interstate Route 80 and were originally zoned for industrial uses.

The amendment was approved by the mayor after its passage by the council. On September 18 the plaintiffs in the Mount Olive case filed a petition with the township clerk for a referendum on the amendatory ordinance. This petition was found to comply with the statutory requirement.

As in the Sparta action, a declaratory judgment was sought by the municipality as to the applicabilty of the referendum procedures to the ordinance. The trial judge ruled in this case, as did the trial judge in the Sparta litigation, that the referendum procedure was not applicable.

The issue raised here presents a question not directly decided before in New Jersey. The Faulkner Act, in pertinent part, provides:

The voters shall also have the power of referendum which is the power to approve or reject at the polls any ordinance submitted by the council to the voters or any ordinance passed by the council, against which a referendum petition has been filed as herein provided. No ordinance passed by the municipal council, except when otherwise required by general law or permitted by the provisions of section 17-32(b) of this act, shall take effect before twenty days from the time of its final passage and its approval by the mayor where such approval is required. * * * [ N.J.S.A. 40:69A-185]

A companion section of the statute (N.J.S.A. 40:69A-184) provides a slightly different procedure for expressing public participation in municipal ...


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