Carton, Lora and Seidman. The opinion of the court was delivered by Carton, P.J.A.D.
Plaintiffs appeal from a judgment rejecting their challenge to the validity of an amendment to the zoning ordinance of the Township of Morris. The amendatory ordinance in question was enacted on February 9, 1972.
Plaintiffs are the owners of a tract of land consisting of about 25 acres in Morris Township.
It appears that in 1961 the Township established a new Office and Laboratory Zone (O & L) which included land now owned by plaintiffs. The new zone extended westerly from a public street, known as South Street, to a line running 300 feet east of and parallel to James Street, a two-lane public street to the west. The only public access for the O & L Zone was from South Street. The 300 foot strip between the O & L Zone and James Street retained its pre-existing residential classification.
In 1966 the alignment of I-287 was established through this sector of the municipality. The highway alignment bisected the O & L Zone leaving plaintiffs' tracts lying entirely west of the I-287 right-of-way, but fronting on residentially zoned James Street and bounded by the highway access interchange on the south and by other land on the north. The property thus lay in two zones -- the westerly portion consisting of about eight acres and running to a depth of 300 feet from James Street was located in a residential zone; the easterly portion, comprising the remainder of the tract and bordering on the highway, was located in the Office and Laboratory Zone.
In May 1970 the plaintiffs applied to the Board of Adjustment for a use variance authorizing the construction of two driveways from the portion of their property in the O & L Zone, across other parts of their property zoned for residential
use to James Street. On July 13, 1970 the Board of Adjustment denied plaintiffs' request. On August 28, 1970 plaintiffs filed an action in Superior Court challenging that determination.
While the matter was before the court, the Township Committee requested the Planning Board to recommend the appropriate zoning for the lands between James Street and I-287. Despite opposition from defendant Spring Brook Homes Association, an organization of homeowners in that area, the Planning Board recommended that the O & L Zone be extended to James Street.
The Township Committee then met with trustees of the homeowners' association at the home of one of its trustees on March 7, 1971 to discuss the rezoning of the land in question. At the next regular meeting of the Township Committee on March 10, 1971, the question of rezoning the land was postponed until the Superior Court, Law Division had rendered its decision.
On May 21, 1971 that court held the use variance should have been granted. The Township Committee and other defendants appealed that decision on July 8, 1971 with the apparent motive of delaying the start of construction of plaintiffs' proposed office building. In a per curiam opinion on February 7, 1972 this court affirmed.
The ordinance under attack in this proceeding was introduced on January 12, 1972 and referred to the Planning Board. This ordinance transfers plaintiffs' property from O & L Zone to R-3 residential. The Planning Board adopted a resolution disapproving the ordinance on February 7, 1972. Two days later, the Township Committee, by a vote of 4 to 1, adopted the ordinance despite the Planning Board's unfavorable recommendation.
Another amendatory ordinance not directly pertinent to the present controversy, allowing clustering of dwellings in R-3 zones and revising clustering provisions in R-2 zones, was subsequently adopted by the governing body. On October 16,
1972 the Township's first Master Plan, which recommended low density residential development for the area including plaintiffs' land, was adopted by the Planning Board.
At trial both parties introduced expert testimony as to the feasibility of using plaintiffs' land for single-family dwellings. Mr. Winston, who testified for the plaintiffs, prepared plans and cost estimates on the basis of the requirements of the Township ordinances for a residential development of the tract. He concluded that the cost of developing the tract would be $747,983 without clustering, and that the cost would vary from $681,550 to $720,250 with clustering. Mr. Winston's plans were prepared in accordance with standard engineering procedures.
Defendants produced Mr. Kirkpatrick who prepared plans specifically for use at trial. He was of the opinion that a residential development would involve costs varying from $275,000 to $375,000.
Real estate appraisers testified on behalf of both parties; plaintiffs' expert testifying on the figures provided by plaintiffs' engineer, projected a loss of $287,000 to plaintiff or $94,000 if clustering should be employed. The witness did state that if he used Mr. Kirkpatrick's figures the result would be different. The defendants' expert arrived at ...