The matter before this court is a challenge to an amendment of the West Paterson zoning ordinances. The plaintiffs are taxpayers and residents of the municipality and ask this court to declare the amendment invalid.
The area in question is known as a "B" residence district and the applicable ordinance prior to the amendment provided:
In residence "A" [and residence "B"] districts no building or premises shall be used, and no building or other structure shall be built, altered or erected, to be used for any purpose other than that of
c. Any form of horticulture, including the sale of farm products on properties where produced except the keeping of livestock and all other animals except household pets.
On November 28, 1973 the municipal council of West Paterson caused to be introduced Ordinance No. 73-7 entitled,
"AN ORDINANCE TO AMEND CHAPTER XXII OF THE ORDINANCES OF THE BOROUGH OF WEST PATERSON WHICH IS KNOWN AS 'THE ZONING ORDINANCE OF THE BOROUGH OF WEST PATERSON,' ADOPTED DECEMBER 29, 1972." This amendment to section 22-5.1(c) provided that
Any form of horticulture, including the sale of farm products on properties where produced except the keeping of livestock and all other animals except household pets and horses or ponies kept for non-commercial purposes providing said horses and ponies are kept on property which has a minimum lot size of one acre or more and said horses or ponies are kept in a building no part of which is closer than 20 feet to any dwelling on the same plot or within 50 feet of any property line. [Emphasis supplied]
It is to be noted that the amendment explicitly allowed the keeping of horses and ponies while the original ordinance appears to preclude livestock. We need not consider the connotation of any phrases in the original ordinance, for such construction has not been placed properly in issue before this court. All the parties ask is a determination of whether the amendment to the ordinance is valid. The invalidity of the amendment is basically premised, as we may surmise from plaintiff's brief, on the existence of self-interest by one of the councilmen in its passage. In contemplating the grounds for determining the ordinance's invalidity, we find only one valid basis for striking down the ordinance, to wit: the self-interest of Councilman May in its passage.
On November 28, 1973 the amendment was introduced for consideration by a vote of five in favor and one opposed. The affirmative votes included that of Councilman May. It is noteworthy that the minutes of the council meeting of November 28, 1973 indicate that the mayor of West Paterson, who is a voting member of the council, stated that he thought the ordinance was tailor-made for the benefit of one member of the council who sat in on its preparation. He further stated that he did not think it was fair to the community to
adopt the amendment with such great speed, in that it was the end of the year and evidently a new council was to be seated. On December 12, 1973 the statutory public hearings were held on the adoption of the amendment, at which diverse views of a small percentage of the townspeople were heard. On December 28, 1973 the amendment was passed by a vote of five in favor of passage, one against and Councilman May's abstention. It is to be noted that May had not abstained on the introduction of the amendment, though he was interested as the owner of horses in the outcome. The ordinance that was passed contained additions from the original proposed on November 28, 1973. The ...