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Windmill Estates Inc. v. Zoning Board of Adjustment of Borough of Totowa

Decided: December 17, 1976.

WINDMILL ESTATES, INC. AND ALBERT RUTHERFORD AND GRACE RUTHERFORD, PLAINTIFFS,
v.
ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF TOTOWA, THE BUILDING INSPECTOR OF THE BOROUGH OF TOTOWA, THE MAYOR AND COUNCIL OF THE BOROUGH OF TOTOWA, SAMUEL CHERBA, PAUL CURCIO, JOHN WHITNEY, GEORGE CIPOLLETI, VILMO DI PAOLA, ROBERT PLACE, SAL DI SALVA, DAVID CUSICK, WILLIAM DE GRAFF, FRANK RE, ARTHUR TODISCO, WASYL VONDERENKO AND JOHN MASKLEE, DEFENDANTS



Salerno, J.s.c.

Salerno

This is an action in lieu of prerogative writs brought by plaintiffs seeking to declare the zoning ordinance of the Borough of Totowa unconstitutional.

Grace and Albert Rutherford are the owners of a tract of land situated on Minisink Road in Totowa. They had contracted to sell their land to Windmill Estates, Inc. Windmill desired to develop the Rutherford property into a community of townhouses to be later sold as condominiums.

The Rutherford tract encompasses roughly ten acres of land. At the time the contract to sell was entered into, this parcel of land was zoned as an R-20 area, i.e. , one-family detached dwelling units located upon a one-half acre, or 20,000 square feet. The contract to sell was subject to a condition precedent that permission first be secured permitting multi-family dwelling units.

On July 15, 1975 the board of adjustment denied an application for a variance. This court, by letter opinion of August 5, 1976, upheld the board's denial of the variance.

Plaintiffs' principal contention is that the zoning ordinance involved is unconstitutional in that it fails to provide for multi-family dwelling units. Hence, plaintiffs argue, it runs afoul of the proscriptions set down by Justice Hall in So. Burl. Cty. N.A.A.C.P. v. Mt. Laurel Tp. , 67 N.J. 151, 187 (1975).

Defendant Totowa's argument is that the Mt. Laurel decision applies only to developing communities. Since, according to defendant, Totowa is not a developing community, it is not subject to the standards set forth in Mt. Laurel.

Totowa is approximately 3.9 square miles in area. From a population of 6,000 in 1950, its population grew to 10,000 in 1960 to 11,700 in 1970.

Presently, 30% of Totowa's confines are industrial and commercial in nature, 35% has developed along residential lines, 30% is used for semi-public and public use, with only 5% of the total land area of Totowa remaining undeveloped.

The median family income in Passaic County is approximately $13,500. Totowa's residents enjoy a $15,000 average family annual income.

Totowa is abutted by Little Falls, West Paterson, Paterson, Wayne and Haledon. The borough has no multi-family dwelling units, Wayne has 1470, West Paterson has 696 and Paterson has 14,904 multi-family dwelling units.

There are four major recent subdivisions in Totowa involving residential districts. None involves multi-family developments. In at least three of the subdivisions the prices of the homes range from a minimum of $63,900 to over $100,000.

The zoning ordinance of Totowa provides for five types of residence districts. They are as follows:

R-40, single-family residences on one acre, or 40,000 square feet;

R-20A and R-20, single-family residences on one-half acre, or 20,000 square feet;

R-7, single-family residences with 7,000 square feet and

R-B, two-family residences of 10,000 square feet.

It is apparent that no provision exists in the ordinance for multi-family dwelling units.

According to Mayor Cherba, the community and town council had early on decided that units of four or more families were unnecessary. It was believed that "any concentration of residents in one area would be detrimental to the safety and well-being of our community." ...


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