On appeal from the Superior Court, Appellate Division.
For modification -- Chief Justice Wilentz and Justices Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- Justice Sullivan. The opinion of the Court was delivered by Schreiber, J.
This zoning matter has been pending for eight years. The proceeding commenced in March 1972, when plaintiffs sought a variance to construct 61 garden apartment units in the Township of Cedar Grove on a 5.75-acre tract zoned only for one-family homes. The Board of Adjustment's recommendation for the variance was rejected by the Township Council.
On January 26, 1973 plaintiffs filed a complaint in lieu of prerogative writ, R. 4:69, challenging the denial of the variance and asserting that zoning plaintiffs' property only for single-family
homes was unreasonable and arbitrary. The trial court found that denial of the variance was proper, but, after a second hearing, declared that the ordinance was unconstitutional because single-family usage was economically infeasible. The trial court's order, dated February 6, 1974, afforded the municipality 120 days to amend its ordinance. This period was extended another 90 days.
On October 7, 1974, the Township rezoned plaintiffs' property permitting its use as an office building or research laboratory. After another hearing the trial court held the amendment unconstitutional. At this point in time, November 18, 1975, the trial court wrote in its letter opinion:
This litigation has taken far too long and has consumed an unreasonable amount of court time, not to speak of the cost to the litigants. . . . I will lay down guidelines pursuant to which the municipality must proceed. First, the municipality must consider the use of the premises for all purposes, including single and multiple dwellings of all kinds in its determination as to how to rezone. Second, the municipality must act within 90 days from the date of the Order entered herein. [citations omitted]
The trial court entered its order on December 15, 1975, requiring the Township to enact a suitable and appropriate amendment to its zoning ordinance within 90 days. The order also provided that upon failure of the municipality to act the court would take other steps to implement its opinion.
The Township thereafter amended the zoning ordinance a second time and reclassified plaintiffs' property into an existing zoning category, "restricted commercial" (RC). Permitted uses included one- and two-family houses and certain commercial purposes (nursery, funeral home, commercial school, bowling alley, small animal hospital, theatre, antique shop, restaurant and automobile sales room, provided no new or used vehicles be stored or stand outside). The trial court held another hearing to consider the Township's latest action. After completion of the trial, on October 7, 1976, but before the trial court issued its opinion, the Township again amended the ordinance to broaden
the commercial uses to include retail stores of 5,000 square feet or less.
The trial court invalidated the ordinance. It declared that the most recent additional amendment, having been made more than 90 days after its December ...