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Petlin Associates Inc. v. Township of Dover

Decided: February 20, 1974.

PETLIN ASSOCIATES, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP OF DOVER, A BODY CORPORATE, ET ALS., DEFENDANTS-RESPONDENTS



For modification and remandment -- Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clifford and Judges Conford and Collester. Opposed -- None. The opinion of the Court was delivered by Sullivan, J.

Sullivan

This is a zoning case. The trial court struck down certain amendments to the Township of Dover's Comprehensive Zoning Ordinance which amendments had the effect of rezoning the area in which plaintiff's property was located from a limited highway commercial use to a hospital-medical service zone. The Appellate Division affirmed in an unreported per curiam opinion. This Court granted certification. 63 N.J. 566 (1973).

Plaintiff is the owner of Lots 17 and 18 in Block 409 in the Township of Dover. The tract is on the north side of State Highway 37 and has approximately 747 feet of frontage thereon. The property is diagonally across from Community Memorial Hospital which is located on the south side of State Highway 37. Plaintiff entered into negotiations for the acquisition of both lots, which were separately owned, in the latter part of 1970 and actually acquired title to lot 17 by deed dated December 31, 1970. On the same date, it entered into a contract to purchase Lot 18 and thereafter acquired

title on April 23, 1971. The combined purchase price of both lots was $225,000.

The Township of Dover had enacted a Comprehensive Zoning Ordinance on or about May 9, 1967 (Ordinance 965). By this ordinance the property in question was zoned R-150 (residential).

On July 27, 1967, Ordinance 975 was adopted enlarging the permitted uses in a limited part of the R-150 zone by allowing professional and business offices as well as the retail sale of specified goods and the provision of certain services therein. Included in the area affected by the amendment was Lot 18.*fn1 The record indicates that the purpose of the amendment was to permit the construction and operation of a retail furniture store on Lot 18. However, the store was never built and apparently none of the land in question was commercially developed. Another amendment to the Comprehensive Zoning Ordinance was adopted in September 1968 establishing a hospital-medical service zone, (Ordinance 1034), and placing the hospital tract on the south side of the highway in the newly created zone.

On December 10, 1970, plaintiff filed an application for a special-use permit for a supermarket on Lot 18. In February 1971, it withdrew the application and on April 16, 1971 applied for a building permit for Lot 18 and a portion of Lot 17 to construct a department store, a conforming use in this part of the R-150 zone under Ordinance 975. No municipal action was taken on plaintiff's application for a building permit. Indeed, three days prior thereto on April 13, Ordinance 1162 had been introduced on first reading having as its object the repeal of Ordinance 975. The proposed ordinance was referred to the Township Planning Board which approved

its adoption but also recommended that the area affected by Ordinance 975 be rezoned hospital-medical service, the same as the zone plan on the opposite or south side of State Highway 37.

On May 11, 1971, Ordinance 1162 was enacted repealing Ordinance 975 and thereby restoring the entire R-150 zone to its original residential status. At the same meeting an ordinance, later to become Ordinance 1177, was introduced to rezone the north side of Highway 37 from Lot 18 easterly to the Toms River to a hospital-medical service zone. The Planning Board ultimately approved the proposed rezoning after certain recommended changes had been made and on July 27, 1971 Ordinance 1177 was adopted by the Township's governing body. This latter ordinance: (1) added some restrictions on the permitted uses in the hospital-medical service zone,*fn2 and (2) included the north side of Highway 37 area in such zone. The result of the foregoing was to prevent Petlin Associates from going ahead with its department store plans for Lots 17 and 18. The instant suit then ensued charging that the zone changes effected by Ordinances 1162 and 1177 were arbitrary and capricious and not in furtherance of any of the legitimate purposes of zoning.

Following a plenary hearing, the trial court, in an oral opinion, sustained plaintiff's contentions and found that the challenged zoning changes were manipulations hastily enacted for the sole purpose of blocking plaintiff's proposed use and were not in furtherance of comprehensive ...


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