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Pemberton Township v. State

Decided: September 12, 1979.


Haines, J.s.c.


New Jersey produces 83,000 juvenile delinquents plus 11,000 juveniles in need of supervision annually. A "juvenile delinquent" is one who commits an act which, if committed by an adult, would constitute a homicide, treason, a high misdemeanor or misdemeanor, a disorderly persons offense, or a violation of any penal statute, ordinance or regulation other than violation of the motor vehicle statutes. N.J.S.A. 2A:4-44. A "juvenile in need of supervision" is one who is habitually disobedient to parents or guardians, ungovernable or incorrigible, habitually and voluntarily truant from school or who has violated a statute or ordinance applicable only to juveniles. N.J.S.A. 2A:4-45. Our courts send approximately 100 juvenile delinquents to the Training School for Boys -- Skillman, each year. Skillman maintains an average population of 135 delinquents ranging in age from eight to 13 years. Interest in improving rehabilitation prospects for these children led to the adoption of a program by the New Jersey Department of Corrections, under which Skillman operates, which would place them in settings free from institutional connotations. Under it homes were to be established in communities throughout the State in which small groups of deserving boys, carefully selected from the Skillman population, would be housed with surrogate parents in a setting as close to that of a biological family as possible.

In the summer of 1978 Thomas Lynch, Assistant Commissioner of the Department of Corrections, learned of a large dwelling (the Goodman property) for sale at New Lisbon, in Pemberton Township, Burlington County, New Jersey. He visited the property on September 9, 1978, and on September 20, 1978 met

the mayor of Pemberton Township and its administrator to discuss its possible purchase. At that time he was considering a use of the property for delinquent girls. These officials were "dead set" against the proposal, and Lynch thereafter decided that the plan was not feasible. On September 28, 1978 he conceived the idea of using the Goodman property for the children at Skillman and started machinery in motion for the acquisition of the dwelling.

The Department was under considerable pressure with respect to this acquisition since it was to be sold at public auction on October 16, 1978, and it was only on October 10, 1978 that the purchase was approved. On that date Harold T. Miller, a project coordinator for the Department, was instructed to inspect the property and test community reaction. Miller, provided with only skeletal information about the project, inspected the dwelling and visited various areas of the township. By prior arrangement, he met with the mayor, the secretary of the zoning and planning boards, the tax assessor and the community planner to discuss the program. These officials expressed concern about the introduction of juvenile delinquents into their community. They exposed township problems, including the delinquency of its resident juveniles, declining tax ratables, rising unemployment and welfare dependency. Miller then spoke with three persons living near the house to be acquired, two of whom indicated no objections, while one objected strongly. The postmaster was consulted and expressed opposition. The Goodmans, who were selling the house and still lived there, were favorably inclined and permitted Miller to see the interior of the house, which impressed him favorably. His visit lasted 4 1/2 hours. Zoning problems were not discussed with anyone. His recommendation to the Department was "pretty neutral." Later, Lynch spoke to a neighbor of the Goodmans, who had not been reached by Miller, and was met with opposition to the project. On the morning of the auction he called the mayor and told him that the State would bid on the property. It did so successfully and now holds title. Its proposed use of the property

has never commenced, however, having been restrained by this court.

The Department witnesses admitted that they gave no consideration to the township's zoning, site plan and subdivision ordinances, or to its master plan, proceeding under the impression that the State was immune from such restrictions. These ordinances were never read, never reviewed with anyone. There were no discussions of any kind with the planning board, the zoning board, the township committee, the police department, the board of education, civic organizations or the township's juvenile aid office. After the purchase a public meeting was held by Department officials and attended by about 20 residents opposed to the intended use of the property. The record does not indicate any discussion of zoning at that meeting, a meeting which was described as "hostile."

The Department has not adopted any regulations concerning its new program, although it has done so with reference to various other institutions which it directs. Consequently, the only description of the program is found in a grant application to the State Law Enforcement Planning Agency submitted on January 12, 1979, amplified by trial testimony. The plan would place a maximum of eight children, ages eight to 13, in the Goodman home, placement being limited to those boys who can "constructively attend the local public schools." Boys to be excluded are those who

(1) are severely emotionally disturbed or retarded;

(2) involved in homicide, arson, rape, extremely aggressive behavior, or other serious offense;

(3) engender intense community reaction;

(4) are not appropriate for placement in residential home environment, and

(5) cannot accommodate to the community school program.

Skillman will retain jurisdiction over the home and its residents. Any boy who becomes a community problem will be returned immediately to that institution. Two house parents,

trained in social work, will complement the family setting. The children will participate in community affairs to the extent possible, and will attend the Pemberton public schools.

College students from the nearby Burlington County Community College will be hired on a part time basis to assist the house parents. The Department of Corrections will monitor the number of boys placed in the program and participate in a determination of its effectiveness. Primary responsibility for operating the project will reside in the Superintendent of Skillman; its staff will provide back-up assistants and a social worker.

The Goodman property consists of 4 1/2 acres of land and a large dwelling located in what is described as the best residential area of the township. It is zoned for residential uses. Neighboring houses are substantial, traditional and well kept. A number of neighbors testified at the trial; all were opposed to the project.

The township is a conglomeration of 13 small settlements producing an aggregate population of about 30,000 people. Substantial portions of the municipality are devoted to public uses: a juvenile detention center, a JINS shelter, a drug treatment center, a work release facility, a home for the aged, a home for the mentally incompetent and a Community College, all county institutions. State, county and federal entities own 9,690 acres of its land. It is burdened with the largest incidence of juvenile delinquency in Burlington County and has established its own center for handling juvenile problems. Except for the area in which the State proposes to establish its program, Pemberton Township's communities consist of modest residences and commercial establishments in essentially rural settings, frequently on lakes and streams. There is little industry. The township population has been swelled for many years by military personnel from Fort Dix and Maguire Air Force Base, which adjoin. Fort Dix activities are now much diminished; the abandonment

of that facility is anticipated, with consequent economic problems.

Pemberton has paid careful attention to zoning and planning concerns. It has retained a planning consultant for some years. A master plan has been adopted and implemented by zoning, subdivision and site plan ordinances.


At the inception of this suit the State moved for dismissal of the action or its transfer to the Appellate Division on the ground that the Law Division lacked jurisdiction. It sought relief under R. 2:2-3. The motion was denied. The State continues to press the point.

In denying the motion I relied upon Colon v. Tedesco , 125 N.J. Super. 446 (Law Div.1973), an action against the Department of Labor and Industry and others relating to the alleged improper operation of migrant labor camps. In Colon the Appellate Division held that there was jurisdiction in the Law Division because the suit sought the performance of mandatory, statutory functions -- in effect, ministerial acts. Further, there was no machinery in the Department for creating a record upon which review by the Appellate Division could rest. See also, Pfleger v. N.J. State Highway Dep't. , 104 N.J. Super. 289 (App.Div.1968), and Princeton First Aid v. Civil Rights Div. , 124 N.J. Super. 150 (App.Div.1973). Like the Department of Labor, the Department of Corrections has no procedures which permit a record of its undertakings to be made for appellate review purposes. In addition, plaintiffs, among other things, seek a judgment directing appropriate consideration by the Department of local concerns before proceeding with its intended use, a mandatory, ministerial function under Rutgers v. Piluso , 60 N.J. 142 (1972). The court's jurisdictional position also finds support in Rutgers v. Piluso; Berger v. State , 71 N.J. 206 (1976); Garden State Farms, Inc. v. Bay , 77 N.J. 439 (1978), and Long Branch v. Cowan , 119 N.J. Super. 306 (App.Div.) certif. den. 62

N.J. 86 (1972). In all of these cases suits were commenced in the Law Division, the jurisdiction of which was recognized implicitly, though not discussed in the opinions.

The Zoning Ordinance

The Goodman property is situate in a residential zone of Pemberton Township. The zoning ordinance contains the following definitions:

Dwelling, Detached: a building physically detached from other buildings or portions of buildings which is occupied or intended to be occupied for residence purposes by one housekeeping unit and which has its own cooking, sleeping, sanitary and general living facilities.

Dwelling Unit: A room or series of connected rooms containing living, cooking, sleeping and sanitary facilities for one housekeeping unit. The dwelling unit shall be self-contained and shall not require the use of outside stairs, common hallways, passing through another dwelling unit or other indirect route(s) to get to any portion of ...

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