Petition for Writ of Certiorari — Township of Freehold v. Schere
Supreme Court brief1973
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MICHAEL RCDAK, JR.,CLE
IN THE
Supreme Court of the Anited States
Ocroser Term, 1972
No.
“TD-985
FRANK SCHERE; JACOB BLACK; ANNA BLACK; DAVID
ROBINSON; LILLIAN ROBINSON; LAWRENCE COHEN;
BARBARA COHEN; and SALLY TANNENBAUM :
0s. :
4
TOWNSHIP OF FREEHOLD,
Petitioner.
On PetrTION FOR A Writ OF CERTIORARI TO THE APPELLATE
DivisION OF THE SUPERIOR CourT OF NEW JERSEY
PETITION FOR WRIT OF CERTIORARI
JOHN A. KAYE, 4
Attorney for Petitioner,
64 West Main Street,
Freehold, New Jersey 07728
(201) 462-0480
55, UAW PY Ae eta ergy ae
Newark, N. J. N. J. Appellate Printing Co., inc. Woodbridge, N. J.
(201) 623-7224 Law Printers (201) 636-2030
Tha gk ea —-
TABLE OF CONTENTS
Page
os oss ova wie Gb 6 kbs dna oS ae
I Sone sik cos hdc cee wie ress ew eane's 2
Constitutional Provisions Involved ............... 3
MIE ook R Rb Ay pennseidcnsssesescnnniensss 4
eer errr etree eee ee eree 5
RODE Fee TP Ee 6
Reasons for Granting the Writ .................... 10
1. The appellate court below was in error in find-
ing the municipal zoning ordinance to be an
unconstitutional confiscation of the plaintiff's
en ee 10 J
2. The decision of the appellate court below is in
clear conflict with established federal and state :
precedents regarding judicial interference in ;
legislative determinations .................. 18
REIS N UE 5 PIR My te ee ee 23
Cases CITED: '
Causby v. United States, :
oo ici caveat buwn nner aes 11, 16
Central Lumber Co. v. South Dakota, :
296 U.S. 157 (1912) ............00eeceeeeeeee 18
Columbia Basin Orchard v. United States, i
132 F. Supp. 707 (1955) ................006. 3 Oe
Collins v. Board of Adjustment of Margate City, 1
ce cise iysdaikensses 14
ti
TABLE OF CONTENTS
| P;
Cases Cirep: ”
Confederation De La Raza Unido v. City of
Morgan Hill,
324 F. Supp. 895 (D.C. 1971) ............... 29
Creasey v. Stevens,
160 F. Supp. 404 (D.C.W.D. Penna., 1958) .... 13
Fanale v. Hasbrouck Heights,
28 NJ. SES (1008) ..........0080 5.5 ois 19
Gant v. Oklahoma City,
OUP: US.98:( 1008). . 2. ie. cies. dg. 18
Goldblatt v. Town of Hempstead,
368 US. 500 (1982) .........000.0.00000., 13, 17
Griggs v. Allegheny County,
SRD et 1]
Grubel v. Mac Laughlin,
286 F. Supp. 24 (D.C.V.I. 1968) ............... 18
Hadacheck v. Sebastian,
239 U.S. 394 (1915) ...................... 12, 16
Hudson County Water Company v. McCarter,
OO Mr 0s)... ecco cence. eee ll
Interstate Consolidated State Railway v.
Massachusetts,
ee ee ow i ll
Johnson v. Township of Montville,
109 N.J. Super. 511 (App. Div. 1970) .......... 19
Kozesnik v. Montgomery Township,
Wr PR Me COED Skins eeveunsac ie penbeuull 14
iti
TABLE OF CONTENTS
Page
Cases CITED:
Lamm v. Volpe,
449 F.2d 1202 (U.S.C.A. 10th Cir. i971) ...... 17
Livingston Township v. Marchev,
OS LE. Supe Ge COE) .. 2s. con kes senses, 14
Midtown Properties, Inc. v. Madison Township,
fg Sg | eererer rte rere 14
Monmouth Junction Mobile Home Park, Inc. v.
South Brunswick Township,
OT PE TR TE CED i ws ceases cwsess. 14
Mugler v. Kansas,
CED ob sc dw ds vavasteseatens 10, 16
Otis v. Parker,
Ss ee 8 Ere eee 18
Pennsylvania Coal Co. v. Mahon,
Se Oh ME CUED aca vavadecvndvasisscsaues ll
Peterson v. Palisades Park,
gS Perret ere rer 19 :
Robertson v. City of Salem, ;
191 F. Supp. 604 (D.C. Or. 1961) ............ 18
Rock Hill v. Chesterfield Township,
Burlington County, 3
Or PO MU OED hoses cu nesesceuseusdeoe bas 14 :
Rockaway v. Rockaway Township,
38 N.J. Super. 468 (App. Div. 1955) ............ 14
United States v. Central Eureka Mining Co.,
Se We ee GO eos cee ecco ee neces caees 11 ;
iv
TABLE OF CONTENTS
Cases CIrep:
United States v. Kansas City Life Insurance Co.,
aoe Oe tee ....................0 ll
Village of Euclid v. Ambler Realty Co.,
272 U.S. 365 (1996) ...................... 12, 17
Yara Engineering Corp. v. City of Newark,
cists, teen SO 14
Zahn v. Board of Public Works of
Los Angeles,
Ey en 18
STATUTES CITED:
| I a Sn res Ser 15
NS os vk aw wenwxnnaeeeee nce. 15
ee 4
CONSTITUTIONS CITED:
N.J. Const. Art IV, sec 6, para. 2 .............. 3, 15
United States Const., Amendment V .............. 3
Appendix A
Opinion of the Monorable Andrew A. Salvest,
Judge of the Superior Court of New Jersey .... la
Appendix B
Opinion of the Superior Court of New Jersey,
Appellate Division as of Docket No. A-429-71 .... 2la
Appendix C
Zoning Ordinance of the Township of Freehold .. 25a
IN THE
SUPREME COURT OF THE UNITED STATES
OcroBER TERM, 1972
No.
FRANK SCHERE; JACOB BLACK; ANNA BLACK;
DAVID ROBINSON; LILLIAN ROBINSON; LAW-
RENCE COHEN; BARBARA COHEN; and
SALLY TANNENBAUM
vs.
TOWNSHIP OF FREEHOLD,
Petitioner.
To the Honorable the Chief Justice and Associate
Justices of the Supreme Court of the United States:
PETITION FOR CERTIORARI
The Petitioner, TOWNSHIP OF FREEHOLD, prays
that a writ of certiorari issue to review the opinion and
judgment of the Appellate Division, Superior Court of the
State of New Jersey rendered in these proceedings on
June 23, 1972.
2
OPINIONS BELOW
_ The opinion of the Law Division, New Jersey Superior
Court, is unreported and appears at Appendix A, infra,,
pp. 1a-20a. The opinion of the Appellate Division, New
Jersey Superior Court, 119 N.J. Super. 433 (1972), ap-
pears at Appendix B, infra., pp. 2la-24a. A Petition for
Certification was denied by the New Jersey Supreme Court,
3
CONSTITUTIONAL PROVISIONS
INVOLVED
Constitution of the United States, Amendment V, in
applicable part states:
“.,.nor shall private property be taken for public use,
without just compensation.”
Article IV, Section 6, Paragraph 2, New Jersey Con-
stitution:
“The Legislature may enact general laws under which
municipalities, other than counties, may adopt zon-
ing ordinances limiting and restricting to specified
districts and regulating therein, buildings and struc-
tures, according to their construction, and the nature
and extent of their use, and the nature and extent
of the uses of land, and the exercise of such au-
thority shall be deemed to be within the police power
of the State. Such laws shall be subject to repeal
or alteration by the Legislature.”
4
JURISDICTION
The judgment of the Supreme Court of the
New Jersey denying the Defendant's appeal and
for Certification was entered on September 21, 1972.
Petition for Certiorari was filed less than ninety (90)
from the date aforesaid. The jurisdiction of this
is invoked under 28 U.S.C. § 1257(3).
aT,
QUESTIONS PRESENTED
1. Whether a zoning ordinance duly adopted by a
municipality acting pursuant to a constitutional grant of
police power represents a confiscatory taking of the
property of a landowner without just compensation as
required by the Fifth Amendment to the U.S. Constitu-
tion.
2. Whether the Appellate Court below was acting
tion of clearly established precedents when
in contraven
it intervened in the zoning dispute.
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7
Statement of Facts
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8 Statement of Facts
The federal issue was raised in the trial briefs of both
the Plaintiffs and Defendant. The question of confisca.
tory taking was passed upon by the trial judge in his
opinion. Judge Salvest found that the zoning ordinance
in question was not confiscatory of Plaintiffs’ land and
was not in any manner illegal. He found the regulation
to be a legitimate exercise of the police power of the
municipality.
The federal question involved in this case was raised
by the Plaintiffs in their appellate level brief. It was the
position of the Plaintiffs:
1. That the April 12, 1971 ordinance, as applied to
the premises of the Plaintiffs, is illegal, discriminatory,
confiscatory, unreasonable, arbitrary and violates the
Constitutions of the State of New Jersey and of the
United States; higher restrictions have been placed
upon said premises although no changes have taken
place to justify imposition thereof; said restrictions are
not reasonably adapted to accomplish the purposes
for which zoning is permissible; said restrictions are
imposed without reasonable consideration being given
to the prior existing character of the area, its suitability
for particular purposes, the conservation of property
value or the most appropriate use of land throughout
Defendant Township.
The Plaintiffs’ contentions were rebutted by the
Defendants in their appellate level brief:
“The ordinance adopted April 12, 1971, is not arbitrary,
discriminatory, confiscatory or unconstitutional and
was adopted for the purposes for which zoning is
. ible.”
On June 23, 1972, the Superior Court, Appellate
Division, entered judgment in favor of the Plaintiffs. The
Statement of Facts 9
Court’s decision held that the Township Zoning Ordinance
was invalid because it was confiscatory.
The Defendants in their Petition for Certification to
the Supreme Court of New Jersey stated:
“.. . it was and is the position of the municipality
that the ordinance was not arbitrary, ——
confiscatory or unconstitutional. . .” At page 1,
Petition for Certification.
The Defendant's appeal and Petition for Certification
to the Supreme Court of New Jersey were denied Septem-
ber 21, 1972.
Te Anes MRC e AT Fa
10
REASONS FOR GRANTING THE WRIT
1. The appellate court below was in error in finding
the municipal zoning ordinance to be an unconsti.
tutional confiscation of the plaintiff's property.
As was noted above, the Appellate Court’s decision
was based on the following:
“We are satisfied from an examination of the whole
record that the large parcels of land owned by the
respective Plaintiffs are, in very substantial degree,
rendered beyond practical, reasonable utilization under
the restriction thereof by the Zoning Ordinance of
one-family residential development to lots of a mini-
mum of 40,000 square feet or about one acre (R-40.)”
(Appendix B p. 1.)
The Appellate Court felt that this R-40 zoning represented
an unconstitutional confiscation of the Plaintiffs’ property.
In reaching this conclusion, the Appellate Court was in
conflict with standards established by the United States
Supreme Court and lower Federal courts.
The question before the Court is, when does an exer-
cise of “police power” by a governmental subdivision so
interfere with the rights of the landowners that it becomes
a “taking” or “confiscation” under the Fifth Amendment?
The standards used by the Supreme Court to determine
questions of this nature were developed by the first Justice
Harlan and later by Justice Holmes. The Harlan theory
was most clearly articulated in the landmark case of
Mugler o. Kansas, 123 U.S. 623 (1887). In Mugler,
the Court denied compensation to the owner of a brewery
who had been put out of business by prohibition legisla-
tion. The Court stated that for a “taking” under the Fifth
Amendment to occur, the government must assert a “pro-
_
Reasons for Granting the Writ 1]
prietary” interest in the property, it must take the property
for its own use, it must be an exercise of “eminent domain.”
The application of the Harlan theory is demonstrated in
some fairly recent cases. In Causby v. United States, 328
US. 256, 266 (1946), the Court stated:
“It is the character of the invasion, not the amount of
damage resulting from it, . . . that determines the
question whether it is a taking.”
This theory was also used in United States v. Kansas
City Life Insurance Co., 339 U.S. 799 (1950); United ;
States v. Central Eureka Mining Co., 357 U.S. 155 (1958);
and Griggs v. Allegheny County, 369 U.S. 84 (1962). ,
The second operative theory in the area of police
power and the Fifth Amendment was that developed by
Mr. Justice Holmes. The paramount issue in Justice
Holmes’ mind was the extensiveness of the economic harm 4
inflicted upon the landowner by the regulation. In Inter-
state Consolidated State Railway v. Massachusetts, 207 i
US. 79, 87 (1907), he stated, “(T)he question narrows :
itself . . . to the magnitude of the burden imposed. . . .” :
In Hudson County Water Company v. McCarter, 209 U.S.
104, 110 (1911), he said that while the Government may
properly diminish values somewhat under the police power,
if the exercise of that power makes the affected property
“wholly useless, the right of property would prevail over
the other public interest, and the police power would fail.”
The most famous articulation of this principle occurred in
the case of Pennsylvania Coal Co. v. Mahon, 260 U.S. 393
(1922). ;
The Court found that a Pennsylvania statute which
forbade the mining of anthracite coal in such way as to
cause the subsidence of any structure used as a “human
:
f
&
ka
SE
12 Reasons for Granting the Writ
habitation” so diminished the value of the Plaintiff's prop-
erty that it represented a “taking” of the property in ques-
tion.
The Holmesian approach was one of balancing the
needs of society against the rights of the property owner,
The decision as to when a legitimate exercise of the “
power’ of the State ends and a Fifth Amendment “taking”
begins was to be deterimned by the individual facts of
each case. The Holmesian approach was an attempt at a
pragmatic resolution to a problem which had become
increasingly important as the government expanded its
use of the “police power.”
Under the Holmes test, the question that arises is
what degree of economic diminution would be tolerated
by the Court before a Fifth Amendment “taking” would
occur? This question can be answered by an examination
of the relevant cases.
In Hadacheck v. Sebastian, 239 U.S. 394 (1915), the
Petitioner was the owner of a tract of land upon which
he manufactured bricks. The land was rezoned for resi-
dential development by the municipality. It was a finding
of fact by the Court that this rezoning reduced the value
of the land by 87 1/2 per cent, Id. at 405, yet compensa-
tion was refused because no “taking” was found by the
Court. The Court found this rezoning to be a legitimate
exercise of “police power” of the community.
A similar set of circumstances occurred in the land-
mark case of Village of Euclid v. Ambler Realty Co., 272
U.S. 365 (1926). In Euclid, the Appellee was the owner
of a tract of land, the value of which was reduced by 75
per cent by the municipality's enactment of a comprehen-
sive zoning regulation. The Court upheld the municipal
Zoning Ordinance and found it to be a legitimate exercise
of the “police power.” The Court stated:
Reasons for Granting the Writ 13
“4 zoning ordinance must be clearly arbitrary and un-
reasonable and without substantial relation to public
health, safety, morals, or general welfare before it
can be declared unconstitutional.” Id. at 370.
in Euclid, as in Hadacheck, the diminution in value of the
property was not found substantial enough to be confisca-
tory.
In Goldblatt v. Town of Hempstead, 369 U.S. 590
(1962), the Appellant's excavating business was completely
destroyed by a municipal zoning ordinance that favored
residential development. In Goldblatt, the Supreme Court
of the United States stated that a legislative restriction is
not to be viewed as a “taking” merely because it “com-
pletely prohibits a beneficial use to which the property has
previously been put.” Id. at 592.
In all of the above cases, the Court was presented
with extreme circumstances and yet did not find the zon-
ing ordinances in question to be unconstitutional “takings”
nor confiscatory. The conclusion that can be drawn from
these cases is that for a zoning ordinance to constitute a
“taking,” the situation must be extremely unfair to the
landowner, and the ordinance must be discriminatory and
arbitrary.
The vitality of these two tests is witnessed by their
continued application in lower Federal courts. In Colum-
bia Basin Orchard v. United States, 132 F. Supp. 707
(1955), the United States Court of Claims applied the
Harlan test when it held that in order to constitute a “tak-
ing” of property, there must have been an intent on the
part of the government to take the owner's property. In
Creasey v. Stevens, 160 F. Supp. 404, 410 (D.C.W.D.
Penna., 1958), the Court applied the Holmes test when it
stated:
a
el
Reasons for Granting the Writ
“. . . though property may be regulated to a certain
extent under the police power, if the regulation goes
too far it will be recognized as a ‘taking’ for which
compensation must be paid.”
In New Jersey, the courts have approached the ques.
tion of when an exercise of “police power” becomes an
exercise of “eminent domain” and, therefore, confisca
in much the same way as the Federal courts. Zoning in
New Jersey is an exercise of the “police power” of
municipality, Rock Hill v. Chesterfield Township, Burling.
ton County, 23 N.J. 117 (1957), Midtown Properties, Ine,
v. Madison Township, 68 N.J. Super. 197 (1961), Living.
ston Township v. Marchev, 85 N.J. Super. 428 (1964),
Monmouth Junction Mobile Home Park, Inc. v. South
Brunswick Township, 107 N.J. Super. 18 (1969). New
Jersey courts have held that if municipal zoning ordinances
are reasonably related to the problems of the community,
there is not a “taking” of property without compensation
in the constitutional sense. Rockaway v. Rockaway Town-
ship, 38 N.J. Super. 468 (App. Div. 1955), Collins v. Board
of Adjustment of Margate City, 3 N.J. 200 (1949). How-
ever, a zoning restriction against all use of realty has been
found “confiscatory” and beyond the police power of the
municipality. Kozesnik v. Montgomery Township, 24 N].
154 (1957). In the case of Yara Engineering Corp. v. City
of Newark, 132 N.J.L. 370, 372 (1945), the New Jersey
Supreme Court found that a zoning ordinance which lim-
ited the height of buildings in a certain area so destroyed
the value of the property that it became a “taking.” In
this case, the Court found that the city acquired a pro-
prietary interest in the land by way of the zoning regula-
tions. The Court stated:
“The city may not under the guise of an ordinance
acquire rights in private property which it may only
—
Reasons for Granting the Writ 15
acquire by purchase or by the exercise of its power
of eminent domain.”
This determination by the Court represents a clear appli-
cation of the Harlan test.
It is the contention of the Defendants in the instant
case that the Appellate Court was in error in finding the
municipal Zoning Ordinance to be an unconstitutional
confiscation of the Plaintiffs’ property. An application of
either the Harlan test or the Holmes test to the facts of :
the instant case reveals that the zoning regulation in ques-
tion did not expropriate the Plaintiffs’ property, nor did it
so diminish the value of said property as to constitute a ;
“taking.”
The Zoning Ordinance in question here was duly
enacted by the municipality pursuant to a grant of power
by the State Constitution and State Legislature. The 1947
Constitution of the State of New Jersey, Article IV, Section
6, Paragraph 2, states: q
“The Legislature may enact general laws under which
municipalities, other than counties, may adopt zon-
ing ordinances limiting and restricting to specified dis-
tricts and regulating therein, buildings and structures
according to their construction, and the nature and
extent of their use, and the nature and extent of the
uses of land, and the exercise of such authority shall
be deemed to be within the police power of the State.
Such laws shall be subject to repeal or alteration by
the Legislature.”
CP I ® Sens ons ge wong
As a result of this authority, the Legislature enacted
N.J.S.A. 40:55-30 et seq., which set forth the general pur-
poses and powers to be used by governing bodies when
zoning a municipality. N.J.S.A. 40:55-32 sets forth the
purposes of zoning and reads as follows:
PEE PLO DIN OMI Ci Ar pr gee nsmg
16 Reasons for Granting the Writ
“Such regulations shall be in accordance with a compre-
hensive plan and design for one or more of the fol-
lowing purposes: to lessen congestion in the streets;
secure safety from fire, flood, panic and other dangers;
promote health, morals or the general welfare; provide
adequate light and air; prevent the overcrowding of
land or buildings; avoid undue concentration of
population. Such regulations shall be made with
reasonable consideration, among other things, to the
character of the district and its peculiar suitability
for particular uses, and with a view of conserving
the value of property and encouraging the most ap-
propriate use of land throughout such municipality.
As amended L. 1964, c. 150, § 1.”
The Zoning Ordinance in question recited as its pur-
pose all of the above-quoted points and included the
following:
“. + + provide a well balanced and stable economic
structure, control rate and direction of growth. . .”
The Plaintiffs below maintain that this Ordinance was
confiscatory and unconstitutional because R-40 zoning
would be more difficult to develop and sell than houses
built on smaller R-20 and R-25 lots. Nowhere do the
Plaintiffs maintain that the municipality was exercising a
“proprietary interest” in their land. Consequently, the
Harlan test as enunciated in Mugler, supra, Causby, supra,
and the other cases listed previously cannot be satisfied
by their claim.
Neither do the Plaintiffs claim that R-40 zoning would
in any way diminish their land value. Even if there was
some diminution in the value of their property, the Plaintiffs
would be hard pressed to show the loss required to convert
an exercise of “police power” into an unconstitutional
Fifth Amendment “taking.” In the instant case, there was
no 87 1/2 per cent depreciation as in Hadacheck, supra,
Reasons for Granting the Writ 17
nor even a 75 per cent depreciation as in Euclid, supra.
Nor was there a “bald suppression” of a pre-existing busi-
ness as occurred in Goldblatt, supra. All the Plaintiffs
allege here is that homes built on R-40 lots would be
more expensive and that there is a greater market for
homes constructed on R-20 and R-25 lots. The only proof
offered for these contentions are statements of opinion not
based on any empirical data. Given these circumstances,
it appears that the Appellate Court was in error in finding
an unconstitutional taking under the Fifth Amendment of
the United States Constitution. The evidence viewed in
the light of the cases and doctrines outlined above clearly
indicate that the Appellate Court misinterpreted the mean-
ing of the term “confiscatory.”
As noted by the Court in Lamm v. Volpe, 449 F.2d
1202, 1203 (U.S.C.A., 10th Cir. 1971):
“Police power should not be confused with eminent
domain, in that the former controls the use of prop-
erty by the owner for the public good, authorizing its
regulation . . . whereas the latter takes property
for public use and compensation is given for property
taken, damaged or destroyed.”
The facts in the instant case clearly indicate that this was
an exercise of the police power by the municipality and
not an exercise of eminent domain.
As was shown previously, the Ordinance in question
here was enacted pursuant to a legitimate grant of police
power. It was enacted for a legitimate enumerated pur-
pose. It neither “took” the Plaintiffs’ land for use by the
municipality nor did it diminish the value of the property.
Thus, neither the Harlan nor the Holmes tests were satis-
fied. Therefore, the Appellate Court's decision was erro-
neous and in clear conflict with the established precedents
at both the State and Federal levels.
18 Reasons for Granting the Writ
2. The decision of the appellate court below is jp
yer y- in lag.
P rareay rege ding judicial interference
The enactment of a zoning ordinance is an exercise
of the “police power” and is in character. Cen.
tral Lumber Co. v. South 226 U.S. 157 (1912).
Otis ov. Parker, 187 U.S. 606 (1903). It is established law
that there is a strong presumption in favor of the validity
of a legislative enactment. Grubel o. M 286
F. Supp. 24 ( D:C.V.L. 1968); Robertson v. City of Salem,
191 F. Supp. 604 (D.C. Or. 1961).
“The burden of proof, therefore, is upon the party who
assails the validity of such an ordinance to estab-
lish that it does not and will not ‘
order, convenience, prosperity and general welfare.”
Dennis vo. Village of Tonka Bay, 156 F.2d 672, 674
(CCA. 8th Cir. 1946).
If there is room for fair debate as to the validity of a
ordinance, the Court will not substitute its own
for that of the legislature. Cant v. Oklahoma
City, 289 U.S. 98 (1933); Zahn v. Board of Public Works
of Los Angeles, 274 U.S. 325 (1927).
“A Court in construing a zoning law will not set
aside the determination of the legislature unless it
Reasons for Granting the Writ 19
the decision.” City of St. Paul 0. Chicago, St. P., M.
& O. Ry. Co., 413 F.2d 762, 767 (8th Cir. 1969).
This same legal philosophy has been manifested by
New J courts. In the case of Peterson v. Palisades
Park, 127 N.J.L. 190, 193 (1941), the Appellate Court
stated:
“There is a presumption in favor of the validity of the
action of the local authority, and the burden is on the
landowner to establish by evidence that [it] is arbi-
trary.”
In Fanale v. Hasbrouck Heights, 26 N.J. 323 (1958), the
New Jersey Supreme Court noted that if the issue before
a municipality's governing body in a zoning matter is
“fairly debatable,” the judiciary could not quarrel with
the result. These same doctrines were forcefully re-
affirmed in the 1970 case of Johnson v. Township of Mont-
ville, 109 N.J. Super. 511 (App. Div. 1970).
In Johnson, the Court stated that a presumption exists
that a municipal governing body acts reasonably and
that resulting legislation is valid. The Court also held
aggrieved party. It is the Defendant's contention in the
instant case that the Appellate Division Court strayed
from these well established principles when it interposed
its own judgment for that of the municipality and declared
the zoning ordinance in question to be invalid.
The ordinance in question was duly enacted by the
municipality. Its purpose was to provide a well balanced
re ar a ee 7
The adoption of this comprehensive zoning plan was made
sion that Freehold Township experienced during the last
12 years. As of May 1971, the Township's population was
estimated at 14,000. This figure, supplied by the Mon
mouth Planning Board, was well in excess of the
10,400 figure projected by that same body for the year
1990. This means simply that the Township's population
was 25 years in advance of all estimates. 2 Go bate
:
:
;
Reasons for Granting the Writ 21
In August of 1971, the Monmouth County Planning
Board issued a report on housing. The information con-
tained in this report was compiled by the Planning Board
and based in part on the results of the 1970 national census.
The Housing study indicated that between 1960 and 1970,
the population of Freehold Township increased by 175%.
There was an increase of 138% in the number of available
housing units. With the population increasing at a
grater rate than the available housing supply, the housing
shortage situation already extant in 1960 was exacerbated.
The report predicted a continued increase in the demand
for housing in all price ranges.
The Planning Board also noted that the cost of con-
struction of new homes had risen by 40% per square foot
the 1960-1970 decade. This point was dramatic-
ally illustrated by the fact that the median value of in-
county homes had risen by 82% between 1950 and 1970.
median value of single-family dwelling units
was $9,409.00. By 1970, the median
to $26,417.00. The increased median
in part by the fact that 15% of the single-
ing units in the county in 1970 were priced
00 and $50,000.00 and that 6% were
$50,000.00.
>
bate
ihe
the
sions that can
study are that there is a housing shortage in the County
that the demand for new homes in all price ranges
the supply. Given this statistical information,
that can be said of the Plaintiffs’ contentions is
EF EE
Hf
|
As was noted above, there is a presumption in favor
of the validity of a legislative enactment. Those challeng-
i ae
22 Reasons for Granting the Writ
ing an enactment bear the burden of proof. If there js
room for debate as to the validity of an enactment, the
Court will not substitute its own judgment for that of the
enacting legislative body.
In the present case, the doubt surrounding the Plain.
tiffs’ contentions dictated that the Appellate Court refrain
from substituting its judgment for that of the muni .
When the Court chose to ignore this legal mandate, it
acted in clear contravention of established
As was noted by the Federal District Court in the case of
Confederation De La Raza Unido v. City of Morgan Hill,
324 F. Supp. 895 (D.C. 1971), a court should interfere
with the judgment of local authorities in zoning matters
only in the most extreme cases and under the most extreme
circumstances.
23
CONCLUSION
For the reasons set forth above, it is respectfully
submitted that this Petition for Certiorari should be _
granted.
Respectfully submitted,
/s/ John A. Kaye
JOHN A. KAYE
Counsel for Petitioner
la
Appendix A
OPINION OF THE HONORABLE ANDREW A.
SALVEST, JUDGE OF THE SUPERIOR COURT OF
NEW JERSEY
(Dated August 18, 1971)
William R. Blair, Jr., Esquire
Parsons, Canzona, Blair & Warren
18 Wallace Street
Red Bank, New Jersey 07701
John A. Kaye, Esquire
Krusen, Dawes & Murphy
64 West Main Street
Freehold, New Jersey 07728
RE: Black, et als v. Township of Freehold
Docket No. L 32525-68 P.W.
Cohen, et als v. Township of Freehold
Docket No. L 32526-68 P.W.
Gentlemen:
This matter came before the court by way of Complaint
in lieu of prerogative writ to set aside amendments to the
Zoning Ordinance.
The plaintiffs in the within consolidated suit are owners
of land situated in a zone created by the amended Zoning
Ordinance enacted on May 26, 1969. Originally the land
was situate in a Residential A Zone, which required a
20,000 square foot lot size with a 100 foot width. On May
24, 1965, an interim ordinance was adopted increasing the
square footage to 40,000 with a 200 foot width. This
amendment was subsequently amended August 22, 1966
to include a 160 foot depth. Both amendments referred
to a nonexistent October 2, 1963 ordinance. (Original
Psat ar te
SAF RA OMIM BNR Riche ere eines
2a Appendix A
ordinance amended by these changes was enacted October
2, 1953.)
A short history concerning zoning ordinances in the
Township might be informative. The original ordinance
was adopted October 2, 1953. This ordinance created six
zones as shown on the Zoning Map of Freehold T
Monmouth County, New Jersey, 1953”. Most residential
acreage was placed in Residential A Zone wherein mini-
mum lot area was 20,000 square feet with a 100 foot width,
The premises in question were placed in said Residential
A Zone.
The first amendment of said original ordinance was
adopted February 25, 1965, and affected only uses pro-
hibited in the Industrial E Zone. A further amendment
was adopted May 24, 1965, and which is referred to as the
interim ordinance, pending completion of the
studies and the adoption of appropriate standards to be
included in a proposed new comprehensive zoning ordi-
nance for the Township.
This interim ordinance included a requirement that no
lot area therein be less than 40,000 square feet, and no lot
width or depth less than 200 feet. Exceptions were for
existing B-1 Residential Zone. This ordinance described
the ordinance of which it purported to be an amendment
as adopted and approved October 2, 1963. The record
shows that no ordinance was adopted October 2, 1963.
(Original ordinance adopted October 2, 1953.)
On May 21, 1965, two additional amendments were
adopted which involved factors concerning commercial
and industrial zones. On May 24, 1965, a further amend-
ment was adopted affecting the industrial and commercial
zones. On June 14, 1965, the ordinance was amended
affecting location of filling stations. December 27, 1965,
—_ eacemapaaammeaaaaaaciaaa
Appendix A
the ordinance was amended placing certain specified areas
formerly situated in the Residential A Zone in the Indus-
trial E Zone, among other things.
February 28, 1966, ordinance was amended rezoning
certain premises from Commercial D Zone to Residential
A Zone. April 25, 1966, ordinance amended affecting
Commercial D or Highway Development. May 23, 1966,
ordinance amended affecting Commercial D or Highway
Development Zone. August 22, 1966, ordinance amended
to provide for minimum lot width of 200 feet and minimum :
lot depth of 160 feet in Residential A Zone. September
92, 1966, ordinance amended affecting Industrial E Zone.
October 10, 1966, ordinance amended to define terms
“Home Occupation” and “Home Professional Occupa-
tions,” among other things. April 22, 1968, ordinance
amended removing certain properties from Residential A
Zone and placing them in Industrial E Zone.
January 13, 1969, introduced and passed on first reading
what purported to be a comprehensive revision of the
original Zoning Ordinance heretofore amended and supple-
mented. This ordinance finally adopted on May 26, 1969,
and placed the properties in question in the R-40 Resi-
dential Zone. However, part of the Wardell tract was
placed in the R-25 Residential Zone. On March 10, 1969,
an amendment was introduced which placed the entire ~
Wardell tract in the R-40 Zone and which was finally =~
adopted on May 26, 1969. i
While this action was pending, and in March of 1971,
the proposed ordinance introduced January 13, 1969, and
as the same was amended and supplemented by the amend-
ment introduced March 10, 1969, and two other subse-
quent amendments not here pertinent, was introduced and
passed on first reading and on April 12, 1971, was adopted.
3a
RACINE ries 7 ——
DEEN OT ORO, eo ap Tig ”
4a Appendix A
The plaintiffs attack all of these actions commencin
with the adoption of the interim ordinance down to and
including the ordinance adopted April 12, 1971 as the
ordinance affects the properties in question.
The ordinance adopted on May 26, 1969, was a com-
prehensive revision of the original zoning ordinance and it
perpetuated the 40,000 foot requirement established by
the interim ordinance in some areas and reduced it to
25,000 feet in others. The latter reduction was designed
to affect those lands which had received preliminary sub-
division approval. The May 26, 1969 ordinance recited all
of the purposes of zoning which are contained in N.J.S.A.
40:55-32 but also includes the following recital:
“. . + provide a well balanced and stable economic
structure; control rate and direction of growth; . . .”
Depositions which were taken from a member of the
Planning Board and Township Committee indicate by
their testimony that these latter purposes were the main
reason the ordinance was enacted. The plaintiffs contend
that the ordinance is void because its purpose is to tie up
land by the use of large lot sizes until the governing body
determines that the town can economically absorb addi-
tional people and also that the interim ordinance is void
because it purports to amend a nonexisting ordinance.
Plaintiffs contend that since the ordinance was motivated
by the Township's desire to control growth, it is void be-
cause none of the purposes of zoning enumerated in
N.J.S.A. 40:55-32 sets forth the purposes of zoning and
essential considerations and reads as follows:
“Such regulations shall be in accordance with a com-
prehensive plan and designed for one or more of the
following purposes: to lessen congestion in the streets;
secure safety from fire, flood, panic and other dangers;
——
Appendix A 5a
romote health, morals or the general welfare; pro-
vide adequate light and air; prevent the overcrowd-
ing of land or buildings; avoid undue concentra-
tion of population. Such regulations shall be made
with reasonable consideration, among other things,
to the character of the district and its peculiar
suitability for particular uses, and with a view of
conserving the value of property and encouraging
the most appropriate use of land throughout such
municipality. As amended L.1964, c.150, § 1.”
Bi oat 5 a
However, it appears clear that a municipality may utilize
the zoning power to promote the general welfare which
is an enumerated purpose. In this context, it has been
held that a municipality may zone with the intent of reap-
ing economic benefit by stimulating industrial rather than
residential development, thus relieving the tax burden and :
school congestion by increasing tax ratables and reducing :
the incoming population. Gruber v. The Mayor and Town-
ship of Raritan, 39 N.J. 1, 9 (1962).
A municipality may strike a balance favorable to home- i
owners between residential and industrial uses in order to
obtain a sound municipal economy. Newark, etc. Cream |
Co. v. Parsippany-Troy Hills Township, 47 N.J. Super.
306, 328 (L.D. 1957). The court stated:
SIE es Tee 5 alta
“Is a zoning classification based upon such a purpose
and intent a valid exercise of zoning power? I think
it is. Zoning is one aspect of the sovereign police
power. Such power is not limited to measures directly
needful to serve the public health, morals and safety.
It may also be invoked to serve the public conven-
ience and general prosperity and well-being. Mans-
field and Swett, Inc. v. West Orange, supra, 120
N.J.L., at page 153; Pierro v. Baxendale, 20 N.J. 17,
EERE Sp Reg oe
ae Sy cee PAIN ET BOR Te SRR RnR RO. tte Ir Cog
EP fe Deg
——
6a Appendix A
at page 28 (1955). The essence of zoning is to pro-
vide a balanced and well ordered scheme for all
activity deemed essential to the particular municipal-
ity. Berdan v. City of Paterson, 1 N.J. 199, 205
(1948); Kozesnik v. Township of Montgomery, 24
N.J. 154 (1957). Subject to the rule of reason, the
kind of community and the kind of balance is exclu.
sively a mater for local legislative determination.
Duffcon Concrete Products v. Borough of Cresskill,
1 N.J. 509 (1949). I conclude that a zoning scheme
seeking balanced land use to obtain a sound munici-
pal economy by encouraging industry on which taxes
may be levied to help meet the deficit in the cost of
municipal services to home owners is a proper exer-
cise of the zoning power, subject always to the rea-
sonableness of the classification and regulations en-
acted to achieve the end both generally and with
respect to particular property.”
Neither of these purposes are specifically enumerated in
N.J.S.A. 40:55-32 yet both have been held to be within
the general welfare portion of the statute.
Considering that minimum lot size restrictions are valid
exercises of municipal power, (Fischer v. Township of
Bedminster, 11 N.J. 194 [1952]), it seems reasonable that
a municipality may reasonably use this device to insure its
economic well-being by controlling the rate of its growth.
This conclusion is especially compelling when one con-
siders that minimum lot sizes by their very nature retard
growth. In this regard, we cite Harrington Glen, Inc. v.
Municipal Board of Adjustment, Borough of Leonia, et al,
52 N.J. 22, 32 (1968):
“(6, 7) All of the cited cases recognized, as do our
own, the long-since settled doctrine that reasonable
Appendix A Ta
zoning regulations designed to promote the orderly
physical development of a municipality according to
a land use pattern represent a valid exercise of police
power. Of course, such regulations, by establishing
districts wherein land may be devoted only to the
ordinary incidents of ownership. But the restrictions
are not offensive constitutionally because when rea-
sonable in degree and, in the judgment of the govern-
ing body, necessary to the physical harmonious
wth of land use in the municipality, they serve the
overall public interest of the community.”
I have reviewed the testimony and the submissions in an
effort to determine whether or not the evidence supports
plaintiffs’ conclusion that the Township merely intended
to tie up land by the use of large lot sizes.
Plaintiffs in presenting their case, relied on the testi-
mony of a former Mayor, Mr. Marzulli; a Mr. Schlessinger,
agent for the plaintiff Schere, Mr. Kovacs, a professional
engineer, land surveyor and professional land planner, Mr.
Lazarus, a real estate appraiser, a Mr. Sussna, planning and
zoning consultant, a Mr. Halsey, Director of Planning,
Monmouth County Planning Board, Mr. Schwartz, a former
Mayor, member of the Township Committee and member
of the Planning Board for one year, Mr. Wood, former
Chairman of the Planning Board, and Mr. Blatchley, for-
mer member of the Planning Board and former Committee-
man.
The defense called Mr. Smith, a member of the Town-
ship Committee since January 1, 1969, and Mr. Oross, a
professional city planner.
It is noted that Mr. Marzulli, Mr. Schwartz and Mr.
Blatchley were not office holders at the time of the trial
of this case. It is further noted that the testimony of these
BE ELE EE ILE AIOE SLIT ila |
ipality, State v. Giller, 5 N.J. . 130, 132 (
Div. O00), puedes aaencions 7
Appendix A Ga
brought out, however, that Mr. Schwartz did not vote on
either the interim ordinance or on the April 12, 1971 ordi-
nance.
Mr. Wood did not quite recall what his recommenda-
He can't remember
thing. He further stated that he does not know if there
was an intention to change the R-40 zoning in connection
with tracts in question at some later time.
it
iF
i
County, supported
Plan, P-6 in evidence, at 3, Table 1, which deals with
the population peojection for the yours 1960-1000. The
1970 projection was 6100 to 6450. The 1980
7300 to 8400; the 1990 projection, 8100 to 10,400. In fact
the population as of May 1971, for the Freehold Township
area was 14,000 which indicates that the population
growth was 25 years in advance of the
ats
H
ttt
Ht
rity
aif
g
e
:
of
4
d
eee REI TE TL
ta He HL iy
tH HARM i
i F aitjinsllt HE
SEPtISH eRe We
bein aya aH Hla 12h}
re | iif HEH fey
before
ordinance, is still the use at present.
use of the land, and the use it was put to
mitted uses. Plaintiffs completely ignore the fact that the
and after the interim
which to find that the land is, in fact, unsuited for the per-
present
12a Appendix A
They give as their reasons for such failure to apply, that
it was uneconomical to build one-family houses heretofore
This, of course, constitutes no reason insofar as this action
is concerned.
It is also my opinion that based on the testimony that
as the population continues to expand, and there is less
competition from the outstanding R-20 and R-25 lots, that
the demand for R-40 lots will increase in the same manne;
that the demand for R-25 lots experienced great demand
after being upgraded from R-20 lots. I based this upon
the testimony offered by Mr. Halsey. He stated that
Freehold Township will continue to
the following figures: 1968, 10,080; 1985, 32,000; the year
2,000, 65,000. This represents a percentage increase of
population between 1968 and 1985 of 217.5 percent and
between 1985 and 2000, 103 percent. It appears reason-
able, therefore, for me to assume that the demand for R-40
lots will increase in proportion to the pressures of the
population growth.
The plaintiffs further contend that the ordinance is
discriminatory because it treats land similarly situated
differently by imposing a 25,000 square foot minimum
based on no real physical difference. The law requires
that different classes be based on real differences related
to the purposes for which the classes are formed. Rock-
hill v. Chesterfield Township, 23 N.J. 117, 126 (1957).
In the case at bar, where one of the purposes of the
zoning is to control growth, it seems reasonable in effectu-
ating this purpose to draw the line at a puint where no
development has yet taken place or where no commitment
to develop has been made. This, despite the fact that
these other lands have characteristics similar to those re-
stricted.
—
Appendix A 13a
The plaintiffs further contend that the entire scheme
envisioned by the Township is void. Plaintiffs allege that
the municipality intends to maintain those lots, unreason-
ably zoned R-40, undeveloped, until such time as new
development can be economically absorbed. Then it will
reduce the lot size requirements on an individual basis.
| did not find that the evidence was of such nature as to
permit me to find this to have been the intention of the
T Committee. It is noted that the ordinance, on
its face, fails to disclose this plan. Whether such wrong-
doing will occur in the future is, at best, speculative and
should not affect the validity of the ordinance. The vari-
ance procedure, by its nature, gives room for abuse. Yet,
this potential has never in New Jersey formed a basis for a
successful attack on an ordinance.
Plaintiffs contend that Rockhill v. Chesterfield Township,
supra, prohibits this type of zoning. In Rockhill, however,
the scheme invalidated reserved the entire Township for
agricultural and residential uses, and then created special
uses placed according to local discretion without regard to
districts. This unlawful “spot zoning” was apparent from
the ordinance as enacted, and depended for its invalidity
not on the projected intent of municipal officials, but on
the very ordinance itself.
The plaintiffs contend that a lapse of nearly four years
between the time an interim ordinance was enacted and
the time it is replaced by the comprehensive zoning ordi-
nance renders it void, especially where the final product
is so similar to the interim ordinance. An interim ordi-
nances validity with respect to time is measured with refer-
ence to the requirements needed to formulate the plan
giving rise to the comprehensive zoning ordinance. Deal
Gardens, Inc. v. Board of Trustees of Loch Arbour, 48 N.J.
492, 500 (1967).
- |
5
HHL
Hu t
:
alt
the missing ;
of Asbury Park, 18 N.J. Super.
, affirmed 18 N.J. Super. 192 (App. Div.
. Also, a court can repunctuate a statute in reaching
of Walter Marvin, Jr., 97
N.J. Super. 62 (App. Div. 1967), affirmed 53 NJ. 147. It,
therefore, seems reasonable that the court can change the
erroneous date to the proper date especially where the true
intent is so patently clear.
I feel it would be helpful to examine the respective
duties and obligations placed upon all of the litigants in
these cases. The authority to enact a zoning ordinance is
Appendix A 15a
stated in the 1947 Constitution of the State of New Jersey
in Article 4, Section 6, paragraph 2, as follows:
uses of land, and the exercise of such authority shall
be deemed to be within the police power of the
State. Such laws shall be subject to repeal or altera-
tion by the Legislature.”
The Legislature enacted N.J.S.A. 40:55-30, et seq.,
which sets forth the general purposes and powers to be
used by governing bodies in zoning their municipalities.
The judicial role was explained in Harvard Enterprises,
Inc. v. The Board of Adjustment of the Township of
Madison, 56 N.J. 362. Justice Schettino, speaking for the
court at page 368, says:
“Preliminarily, it should be noted that the judicial role
in reviewing a Zoning Ordinance is tightly circum-
scribed. There is a strong presumption in favor of its
validity, and the Court cannot invalidate it, or any
provisions thereof, unless this presumption is over-
come by a clear showing that it is arbitrary or unrea-
sonable. Morris v. Postma, 41 N.J. 354. 359 (1964);
Napierkowski v. Gloucester Tp., 29 N.J. 481, 492
(1959); Zampieri v. River Vale Tp., 29 N.J. 599, 605-
606 (1959); Bogert v. Washington Tp., 25 N.J. 57, 62
(1957).”
It is also clear that a Judge may not interfere merely
because he would have made a different policy decision
16a Appendix A
if the power to decide had been his in connection with q
specific zoning ordinance passed by a governing body,
The court can concer itself only with an abuse of dele.
gated legislative authority and plaintiffs must sustain the
burden in such a situation, and it is a heavy burden
United Advertising Corp. v. Borough of Metuchen, 42 NJ.
1 (1964).
And further, in Johnson v. Township of Montville, 109
N.J. Super. 511, 519 (App. Div. 1970) the following guide.
lines are provided:
“In sum, we may interfere only when the presumption
in favor of the ordinance is overcome by an affirma-
tive showing that it is arbitrary or unreasonable in
the light of the standards prescribed by N.J.S.A.
40:55-32; Kozesnik v. Montgomery Tp., supra, 24 N_J.,
at 167. The burden of proof is upon plaintiffs.
Fischer v. Bedminster Tp., 11 N.J. 194, 204 (1952).
That burden is a heavy one. Ward v. Scott, 16 NJ.
16, 23 (1954); Vickers v. Tp. Comm. of Gloucester
Tp., supra, 37 N.J. at 242; Ward v. Montgomery Tp.,
supra, 28 N.J. at 539.
“Plaintiffs principally base their contention, that the
action of the municipal governing body was unreason-
able, arbitrary and capricious, upon the fact that it
was not in accordance with a comprehensive plan
and did not receive adequate consideration by the
planning board.
“The basic requisites of a comprehensive plan are set
forth in Kozesnik v. Montgomery Tp., supra, as fol-
lows:
“There has been little judicial consideration of the pre-
cise attributes of a comprehensive plan. Haar, ‘In
Appendix A 17a
accordance with a Comprehensive Plan, supra (68
Harv. L. Rev. 1154). Our own decisions emphasize
that its office is to prevent a capricious exercise of
the legislative power resulting in haphazard or piece-
‘ meal zoning. Speakman v. Mayor and Council of
Borough of North Plainfield, 8 N.J. 250, 256 (1951);
- Raskin v. Town of Morristown, 21 N.J. 180, 198
(1956). Without venturing an exact definition, it may
be said for present purposes that ‘plan’ connotes an
integrated product of a rational process and ‘compre-
hensive’ requires something beyond a piecemeal ap-
both to be revealed by the ordinance con-
sidered in relation to the physical facts and the pur-
poses authorized by R.S. 40:55-32. Such being the
requirements of a comprehensive plan, no reason is
perceived why we should infer the Legislature in-
tended by necessary implication that the compre-
hensive plan be portrayed in some physical form
outside the ordinance itself. A plan may readily be
revealed in an end-product—here the zoning ordi-
nance—and no more is required by the statute.
“The comprehensive plan embraced by an original
zoning ordinance is of course mutable. If events
should prove that the plan did not fully or correctly
meet or anticipate the needs of the total community,
amendments may be made, Hochberg v. Borough of
Freehold, 40 N.J. Super. 276 (App. Div. 1956), and
if the ordinance as thus amended reveals a compre-
hensive plan, it is of no moment that the new plan so
revealed differs from the original one.”
I find as a fact, that, in the case before me, the plain-
tiffs have failed to present proofs showing that the actions
of the municipal body were arbitrary or unreasonable, in
the light of the standard N.J.S.A. 40:55-32.
Be
were
MN oS eRe SOLO IEE BON Diary pe oe
18a Appendix A
I further find that the zoning ordinance promulgated
and adopted in May of 1969, and as enacted together with
amendments on April 12, 1971, on its face, demonstrates
it to be a comprehensive plan and had received more than
adequate consideration by the Planning Board and the
municipal governing body.
I have already indicated that amount of effort expended
by the official bodies in considering the ordinance. I also
find it to be a fact that the ordinance is not what is gener-
ally referred to as a freeze out ordinance. That there is
sufficient evidence to indicate that the ordinance is mut.
able, depending on the developing circumstances.
The case of Gruber v. Mayor and Township Committee
of Raritan Township, 39 N.J. 1 (1962) deals with a similar
situation as is now before us, and the court states at page 9:
“It is to be noted that within the borders of the statu-
tory language, the zoning power may be exercised to
promote the general welfare, a term which has re-
ceived very broad definition in our state. See Pierro
v. Baxendale, 20 N.J. 17, 28 (1955). In their efforts
to create a better economic balance in the Township
by stimulating industrial rather than residential devel-
opment, Township officials were seeking to advance
the public welfare by alleviating the heavy tax burden
and the harmful school congestion. So long as this was
being done reasonably as part of and in furtherance
of a legitimate comprehensive plan for the zoning of
the entire municipality, it fell within the terms of R.S.
40:55-32. See Ward v. Montgomery Tp., 28 N.J. 529,
535 (1959); Newark etc. Cream Co. v. Parsippany-
Troy Hills Twp., 47 N_J. Super. 306, 328 (Law Divi-
sion 1957); cf. Rockaway Estates v. Rockaway Tp.,
38 N.J. Super. 468, 477 (App. Div. 1955); Greenway
Appendix A 19a
Homes v. River Edge, 137 N.J.L. 453, 456 (Sup. Ct.
1948).
“In Ward v. Montgomery Tp., supra, the court, in re-
jecting an attack on an ordinance as arbitrary, unrea-
sonable and capricious, had this to say through
Justice Francis:
“The conclusion is inescapable that the township was
hungry for tax revenue. Manifestly, its fiscal picture
was such that a new source of income would serve
the general economic welfare. Pursuit of that objec-
tive was entirely worthy of the attention of th mu- :
nicipal fathers. And its achievement through land v
use regulation will not warrant judicial condemnation
as long as it represents an otherwise valid exercise of
the statutory zoning authority. If the amendment of
the ordinance is compatible with and furthers a |
legitimate comprehensive plan for the zoning of the i
municipality within the contemplation of the statute, :
NJ.S.A. 40:55-32, it is legally unobjectionable. The f
fact that increased tax revenue is intended to result '
therefrom, or that an individual property owner may
be benefited incidentally does not justify a charge of
perversion of power. Kozesnik v. Montgomery Tp.,
supra; Collins v. Board of Adjustment of Margate :
City, 3 N.J. 200 (1949); Rockaway Estates v. Rock- :
away Tp., 38 N.J. Super. 468 (App. Div. 1955); E
Greenway Homes v. Borough of River Edge, 137. é
NJ.L 453, 456 (Sup. Ct. 1948). 28 N.J. at pp. 535,
536.”
The defendant urges that the plaintiffs failed to exhaust
their administrative remedies and that, therefore, this
case should be dismissed on account of such failure. I
feel, that considering all of the circumstances, the case
|
20a Appendix A
should be decided on its merits. Deal Gardens, Ine. y.
Board of Trustees of the Village of Loch Arbour, 48 NJ.
492° (1967).
After considering all of the testimony, the submissions
and the arguments of counsel, I find as a fact, in addition
to what I have said heretofore, that the plaintiffs have
failed to sustain their contentions as required by the au-
thorities I have cited above.
I further find that the ordinances involved herein are
not unreasonable, arbitrary, capricious or in any other
wise illegal. They are not discriminatory because the
properties in question are treated the same as all other
unexcepted propertry. I also find that the ordinances are
not confiscatory of the plaintiffs’ lands and I have already
stated my reasons therefor.
I further find that the ordinances under attack are
comprehensive ordinances and in keeping with the re-
quirements of N.J.S.A. 40:55-30 et seq. and with the
interpretations of that Statute, as indicated by the citations
heretofore, and that the ordinances, as a matter of fact,
demonstrate that they were enacted in the public interest
and with a view of promoting the general welfare.
Therefore, in view of the fact that the plaintiffs have
failed to sustain their contentions by the quantum of proof
required, I hereby dismiss the complaints.
Counsel for defendant will submit an order in accord-
ance with the foregoing.
Very truly yours,
/s/ Andrew A. Salvest
ANDREW A. SALVEST
Judge, Superior Court
AAS/hs
2la
Appendix B
OPINION OF THE SUPERIOR COURT OF NEW
JERSEY, APPELLATE DIVISION AS OF
DOCKET NO. A-429-71
Argued June 12, 1972—Decided June 23, 1972
Before Judges Conford, Matthews and Fritz.
On appeal from Superior Court, Law Division, Mon-
mouth County.
Mr. William R. Blair, Jr. argued the cause for appellants
(Messrs. Parsons, Canzona, Blair & Warren, attorneys ).
Mr. John A. Kaye argued the cause for respondent.
PER CURIAM.
We are satisfied from an examination of the whole
record that the large parcels of land owned by the respec-
tive plaintiffs are, in very substantial degree, rendered
beyond practical, reasonable utilization under the restric-
tion thereof by the zoning ordinance of one-family resi-
dential development to lots of a minimum of 40,000 sq.
ft., or almost an acre (R-40).
One of these tracts is 200 acres in area and the other is
100. Aside from one-family residences, these properties
were restricted under the ordinance as of April 12, 1971,
to farming, and, by way of special use exception, to
arden apartments or planned adult communities. On
September 27, 1971 the ordinance was amended to exclude
garden apartments. On this appeal we are controlled by
the current status of the ordinance. While plaintiffs might
perhaps be required to attempt to devote at least part of
their lands to the planned adult community use (if they
can qualify therefor under the ordinance) before pleading
selling prices of $50,000 and up. No comparable
tial development abuts or is near either tract.
there are surrounding uses for either ind
25,000, 20,000 and 9,000 square-foot residen
would outstrip what the town fathers thought the voters
and taxpayers would accept in fiscal outlay to supply
Appendix B 23a
“due regard to the character of the district and its peculiar
for particular uses.” Raskin v. Morristown, 21
N.J. 180, 198 (1956). We are constrained to the conclu-
sion that this is what has occurred here, and we find no
sippany-Troy Hills Tp., 40 N.J. 539, 557 (1963); Gruber
v. Mayor and Tp. Com. of Raritan Tp., 39 N.J. 1, 12 (1962).
The presumption of validity of the questioned provision of
the ordinance has been satisfactorily overcome.
It may also be observed that a deliberate
attempt to prevent by zoning the residential utilization of
land, apt for the purpose, on behalf of the generality of the
in need thereof, in favor of reserving such
land for future utilization by more affluent users, would
seem to conflict with present-day judicial thought as to
housing needs. See Oakwood at Madison, Inc. v. Tp. of
Madison, 117 N.J. Super. 11 (Law Div. 1971).
24a Appendix B
Defendant's argument that plaintiffs’ to
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Appendix C
ZONING ORDINANCE
OF THE
TOWNSHIP OF FREEHOLD
An ordinance to amend an ordinance entitled: an ord.
nance to limit and restrict to specified districts or zones
and to resulate therein, buildings and structures according
to their construction and the nature and extent of thes
use, and the nature and extent of the use of the land in the
Township of Freehold, in the County of Monmouth and
providing for the administration and enforcement of the
provisions herein contained and fixing penalties for the
violations thereof.
BE IT ORDAINED by the Township Committee of the
Township of Freehold in the County of Monmouth and
State of New Jersey, pursuant to the authority conferred
by N.J.S.A. 40:55-30 et seq. and other statutes of the State
of New Jersey and the amendments thereof and supple.
ments thereto, as follows:
ARTICLE 1
SHORT TITLE, SUBTITLES AND NOTATION
1.1 This Ordinance shall be known and may be cited as
“The Zoning Ordinance of the Township of Freehold.”
1.2 For ease of reference the notation system used in
this Ordinance consists of two numbers of three numbers
separated by periods or decimal points; the first number
is the number of the Article; the second and third numbers
are divisions and subdivisions respectively of the Article;
the parts of the Ordinance identified by a two number of
three-number combination are referred to as a Section.
1.3 The titles and subtitles of the various articles and
sections are intended for convenience only and shall not
Pe RRS SER Bos B
RfaAagas
nd
ot
for particular uses; all in accordance with a comprehen-
sive plan designed to: provide a well balanced and stable
economic structure; control rate and direction of growth;
lessen congestion in the streets; secure safety from fire,
panic, and other dangers; promote health and general
welfare; provide adequate light and air; prevent the over-
crowding of land; avoid undue concentration of popula-
tion; and to that end, to regulate the height, design, appear-
ance, number of stories and size of buildings and other
structures; the percentage of the area of the lot that may
be occupied, the size of the yards, courts, and other open
spaces; the density of population and the location and
use of building structures and land for trade, industry,
residence or other purposes; and the height, size and loca-
tion of these uses with the limits of the Township, these
regulations are hereby established and shall hereafter
apply.
ARTICLE 3
DEFINITIONS
3.1 General Meaning of Words and Phrases
3.2-1 Words used in the present tense include the future
tense.
28a Appendix C
3.1-2 Words used in the singular include the plural,
lar.
3.1-3 The word “shall” is always mandatory .
3.14 The word “lot” includes the word “plot” oy
““ . A a
3.1-5 The word “used” includes the words “intended to
be used” “designed to be used” or “arranged to be used”
3.1-6 The word “occupied” includes the words “intended
to be occupied” “designed to be occupied” or “arranged
to be occupied”.
3.1-7 The word “person” includes a corporation as well
as an individual.
3.1-8 The word “demonstrate” means to provide such
visual, written or oral information as will enable the desig-
nated reviewing agency or board to ascertain the scope and
nature of a proposed use or operation, and to render an
informed opinion or decision thereon.
3.2 Definitions
3.2-1 Accessory Building, Structure or Use:
A building, structure or use subordinate to and custom-
arily incidential to the principal building, structure or use
on the same lot. Where an accessory building is attached
to the principal building by a wall or roof, such accessory
building shall be considered part of the principal building
for the purpose of determining the required yard dimen-
sions.
3.2-2 Alterations, Structural:
Any change, relocation or rearrangement of any sup-
porting members, exterior walls or roof of an existing
building. |
Appendix C 29a
3.2-3 Basement:
A story partly underground, but having less than one-
half (1/2) its height below the average level of the ad-
joining ground.
3.2-4 Boarding House:
Any dwelling in which more than three (3) persons
either individually or as families are housed or lodged for
hire with or without meals. A rooming house or a fur-
nished room house or a lodging house shall be deemed a
boarding house.
3.2-5 Buffer:
A landscaped area designed to act as a visual screen
between a potentially unsightly or otherwise undesirable
or incompatible use and adjacent properties.
3.2-6 Building:
A structure having a roof supported by columns, piers,
or walls, including tents, lunch wagons, trailers, dining
cars, camp cars or other structures on wheels or other
supports and designed or used for shelter, housing enclo-
sure or storage of persons, animals or chattel.
3.2-7 Building Area;
The total of areas taken on a horizontal plane at the
main grade level of the principal building and all accessory
buildings exclusive of uncovered porches, terraces and
steps.
3.2-8 Building Height:
The vertical distance measured from the average eleva-
tion of the proposed finished grade at the front of the
building to the highest point of the roof for flat roofs; and
to the mean height between eaves and ridge for gable, hip
and gambrel roofs.
tI TOY CSAC REPO ae a
? eed
30a
Appendix C
3.2-9 Building Line:
A line formed by the intersection of a horizontal plane
and a vertical plane that coincides with the most pro.
jected exterior surface of the building. All yard require.
ments are measured to the building line.
3.2-10 Building, Principal:
A building in which is conducted the main or principal
use of the site on which it is situated.
3.2-11 Cellar:
A story partly underground and having more than one.
half (1/2) its height below the average level of the ad.
joining ground.
3.2-12 Coverage:
The part of a lot covered by buildings
3.2-13 Dwelling, One Family:
A detached building designed for or occupied exclusively
by one (1) family.
3.2-14 Dwelling, Two Family:
A building designed for or occupied exclusively by two
(2) families living independently of each other.
3.2-15 Dwelling, Multiple Family:
A building designed for or occupied by three (3) or
more families living independently of one another.
3.2-16 Dwelling Unit:
A building, or portion thereof, providing complete liv-
ing facilities for one family.
3.2-17 Essential Services:
Facilities installed or maintained by a public utility or
governmental agency, including gas, electric, phone, water,
Appendix C 3la
sewerage and other similar services necessary to the gen-
eral health, safety and welfare of the public.
3.2-18 Family:
Any number of individuals related by blood, marriage
or adoption, and their domestic employees, living together
as a single housekeeping unit and sharing rooms and
other housekeeping facilities in common.
3.2-19 Fence:
A structure forming an enclosure of an open area and
designed to prevent straying from within or intrusion from
without said enclosure, or to provide a visual barrier for
the purposes of assuring privacy.
3.2-20 Flood Plain:
The area of relatively flat land adjoining a water course
and subject to flooding from an overflow of said water
course, including lands mapped by the Soil Conservation
Service on maps entitled: “Classes of Land According to
Use Capability” filed in the Office of the Soil Conservation
Service in Freehold, New Jersey, as any one or all of the
following:
C231 C321 C240 Cs40 C75
AO Al AO AO AO
3.9-21 Floor Area; Gross Habitable:
The sum of the areas of the floor or floors of a building
which are enclosed and suitable for human occupancy
and having a clear ceiling height of at least seven (7) feet
but including closet space and hallways but excluding
cellars, attics, dead air space, open porches, breezeways,
attached garages and all necessary buildings. Said areas
shall be measured between the inside face of exterior walls
or from the center line of walls separating two dwelling
units.
32a Appendix C
3.2-22 Garage, Private:
An accessory building used for storage purposes only
and having a capacity of not more than three (3) automo.
biles, or not more than one (1) automobile per f,
housed in the building to which such a garage is acces.
sory, whichever is greater. Space between may be utilized
for not more than one (1) commercial vehicle, and
may be rented for not more than (2) vehicles of other than
occupants of the building to which such garage is acces.
sory.
4d 32-23 Garage, Public:
Any building other than a private garage, available to
the public operated for gain and which is used for storage,
repair, rental, lubrication, washing, servicing, adjusting
or equipping of automobiles or other motor vehicles.
3.2-24 Garden Apartment:
A multiple family dwelling or dwellings designed and
constructed as a functional unit, not exceeding two stories
in height, providing a resident superintendent, and fea-
turing the extensive use of lawn areas and landscaping.
3.2-25 Grade, Finished:
The elevation of the completed surface of lawns, walks
and roads brought to grades as shown on official plans or
designs relating thereto, or already in existence.
3.2-26 Farm:
A parcel of land containing at least ten (10) acres which
is used for gain in the raising of agricultural products,
live stock, poultry and dairy products, but excluding the
raising of furbearing animals, riding academies, livery or
boarding stables or dog kennels.
Appendix C
32-27 Home Occupation:
Any occupation conducted on a residential property as
an incidental and subordinate use by a member of the
family residing on the premises.
39-28 Home Professional Occupation:
A home occupation conducted by a member of a recog-
nized profession and limited to the following occupations:
Doctors, lawyers, architects, engineers, artists, ministers,
real estate brokers, insurance brokers, music teachers and
other recognized professional practices, similar in char-
acter to the above, and requiring comparable levels of
education and training.
3.2-29 Hotel:
A building containing twelve (12) or more rooms used,
rented out or hired out for sleeping purposes by guests and
where only a general kitchen and dining room are pro-
vided within the building.
32-30 Junk Yard:
The use of more than two hundred (200) square feet
of any lot for the storage, keeping or abandonment of
automobiles or boats not in operating condition or other
vehicles or machinery or parts thereof.
3.2-31 Lots:
A piece, portion or parcel of land considered as a unit,
devoted to a common use or occupied by, a building or
group of buildings that are united by a common interest
or use, and the area and extent of which are determined
by the latest official records or by the latest approved map
of a subdivision of which the parcel of land is a part.
3.2-32 Lot Area:
The size of a lot measured between the lot lines and
expressed in terms of acres or square feet, but excluding
that part of a lot included in a street right-of-way.
34a Appendix C
3.2-33 Lot, Corner:
A-parcel of land at the intersection of and fronting on
two or more streets.
3.2-34 Lot Coverage:
The percentage of a lot occupied by buildings.
3.2-35 Lot Depth:
A mean horizontal distance between the front and rear
lot lines, measured in the general direction of its side lot
lines.
3.2-36 Lot Line:
Any line dividing one lot from another lot or from a
public thoroughfare.
3.2-37 Lot Frontage:
That portion of a lot extending along a street line. In
the case of a corner lot, the lot line having the longest
distance along the street shall be considered the front lot
line.
3.2-38 Lot Width:
The mean horizontal distance between the side lot
lines measured at right angles to its depth.
3.2-39 Motel:
A Hotel providing individual entrances from the exterior
of the building to each unit and providing parking spaces
convenient to each individual entrance.
3.2-40 Non-Conforming Buildings:
A building which in its design or location upon a lot
does not conform to the regulations of this Ordinance for
the zone in which it is located.
Appendix C 35a
32-41 Non-Conforming Lot:
A lot of record existing at the date of the passage of the
Ordinance, which does not meet the minimum area or
dimension requirements for the zone in which it is located.
39-42 Non-Conforming Use:
A use of a building or lot that does not conform to the
regulation of the zone in which it is located.
3.2-43 Open Space:
An unoccupied space open to the sky and on the same
lot with the principal building.
3.2-44 Parking Space: .
The area required for the parking of one (1) automobile
which for the purposes of this Ordinance is held to be
an area ten (10) feet wide and twenty (20) feet long
exclusive of passageways and driveways appurtenant
thereto and giving access thereto.
3.2-45 Patio:
A level paved surface normally or customarily used as
an exterior sitting area and having no integral structural
connection to any building.
3.2-46 Planning Board:
The Planning Board of the Township of Freehold.
3.2-47 Plat:
A map, plan or layout of a city, town, section, subdivi-
sion or property indicating the location and boundaries
of individual properties or lots.
3.2-48 Principal Use:
The primary or main purpose for which a lot or building
is being utilized.
"oo pute © olen oan ae
an
3.2-52 Restaurant, Drive-In:
Shall be an eating establishment at which provision is
made for eating food commodities and non-alcoholic
Wherever such facilities have heretofore been classified
as a permitted use, such use shall remain a permitted use
Gil (BT ie
an ii
if
ts eT
ae Hi
Appendix C 39a
OPP Re erry
3.2-69 Planned Adult Community
One or more contiguous parcels of land having a total
land area of 75 acres or more acres under
conj
with a homeowner's association; and all sale, resale, rental,
leasing or occupancy of the units or any of the structures
comprising the P.A.C. shall be subject to and must comply
with the terms and conditions of this Ordinance.
Appendix C 4la
ARTICLE 4
ESTABLISHMENT OF ZONES
4.1 Zones
RR Rural Residential Zone R-25 Residential Zone
R-9 Residential Zone R-40 Residential Zone
R-15 Residential Zone B-1 Office & Personal
Service
R-20.. Residential Zone
Zone-1
B-2 Office & Personal Service
Zone-2
B-3 Neighborhood Business M-1 Industrial Zone
Zone
B-4 Service & Supply Zone M-2 Industrial Zone
B-5 Highway Development H-1 Hospital Zone and
Zone services
and incidental
thereto
42 Zoning Map:
The boundaries of all zones are shown on a map entitled
“Zoning Map of the Township of Freehold,” dated Janu-
ary, 1969 and as amended March 1970. Said map, to-
gether with all explanatory matter thereon, is hereby made
a part of this Ordinance as if set forth at length therein.
4.3 Interpretation of Zone Boundaries:
Where uncertainty exists with respect to the boundaries
of any zone as shown on the Zoning Map, the following
definition shall govern:
aerry ¥
hedtitel Re tea oe a)
by, dimensions shown on the Zoning Map or as herein.
after set forth.
4.3-2 Where zone boundary lines, not fixed by dimen.
sions and are so indicated that they appear to be within
ten (10) feet of a lot line as determined by scale from
the zoning map, such lot line shall be construed to be said
boundary line.
4.3-3 In those instances where zone boundary lines
appear as extensions of property lines, and in other in.
stances where the zone boundary line divides a lot, and
where said boundary line appears to be more than ten (10)
feet distant from a property line the location of said
boundary line shall be determined by the use of the scale
shown on the Zoning Map.
4.4 Schedule of Area, Yard and Buld Requirements:
The attached schedule of area, yard and bulk require-
ments is hereby made a part of the Ordinance as though
set forth at length with the same force and effect.
ARTICLE 5
GENERAL PROVISIONS
5.1 Applicability of Regulations Except as hereinafter
Provided:
No structure shall hereafter be erected, structurally
altered or moved nor shall any lands or the buildings
thereon be used for any purpose except in conformity with
all regulations hereinafter established for the zone in which
said land or structure is located. Nor shall any open space
or yard area established for the purpose of complying
Appendix C 43a
with the regulations of this Ordinance be reduced or
encroached upon in any manner except as shall be speci-
52 Permitted Yard Encroachments:
No building or part thereof shall be erected within or
project into any required yard area except in accordance
with the following provisions:
5.2-1 An open entrance porch not more than ten (10)
feet in width shall not project more than eight (8) feet
into a required front yard area.
5.2-2 An open and unroofed patio not more than three
(3) feet above ground level may extend into a required
side or rear yard to within ten (10) feet of a side or rear
line. Such patios, if at ground level, may extend
to within five (5) feet of a side or rear property line.
5.3 Permitted Height Exceptions:
5.3-1 Appurtenances Attached to Principal Structures:
The height limitations of this Ordinance shall not apply
to church spires, belfried, domes, antennas attached to
buildings, silos, or penthouses, none of which are to be
used for human occupancy; nor to chimneys, ventilators,
skylights, water tanks, bulkheads and the necessary me-
chanical appurtenances usually carried above the roof
level.
Such features, however, shall not exceed in coverage
twenty (20) per cent of the total roof area and shall not
exceed a height such as is necessary to accomplish the
purpose which they are intended to serve.
In single family residential zones and on properties
adjacent to single family residential zones any such appur-
tenances which exceed the height limit by more than five
44a Appendix C
(5) feet shall not be located nearer to any property ling
than a distance equal to its height above ground.
5.3-2 Free Standing Accessories:
Water towers, radio and television antennas and
poles which are erected as free standing accessories and
which might normally exceed the height limitations estab.
lished by this Ordinance may be erected to a height which
can be demonstrated to the satisfaction of the Freehold
Township Planning Board as necessary to accomplish their
intended function, except that in residential zones and on
properties adjacent to residential zones, no such structure
may be located near to any property line than a distance
equal to its height above ground.
5.3-3 No sign nameplate, display or advertising device
of any kind whatsoever shall be inscribed upon or attached
to any chimney, tower, tank or any other structure which
extends above the height limitations which are estab-
lished in this Ordinance.
5.4 Except as might be hereinafter specifically pro-
vided, there shall not be more than one principal resi-
dential building erected on any lot.
5.5 No principal building shall be erected upon a lot
which does not have frontage upon a public street improved
to meet requirements of the Township or for which such
improvements have been guaranteed in accordance with
requirements established in the Land Subdivision Ordi-
nance of the Township of Freehold.
5.6 Front Yards:
5.6-1 Any yard facing upon a public street shall be con-
sidered a front yard and shall conform to the minimum
front yard requirements established for the zone in which
said yard is located.
Appendix C 45a
5.6-2 No necessary structures, with the exception of
flag poles, and sign posts shall be erect d within any front
56-3 No front yard shall be used for the storage of
boats, trailers, equipments, or vehicles other than automo-
biles which are in operating condition and which are
on an improved driveway or parking area, except
as might be specifically permitted elsewhere in this Ordi-
nance.
5.7 On any corner lot, nothing shall be erected, placed,
ted or allowed to grow in such a manner as to obstruct
vision between a height of two and one-half (2-1/2) feet
and ten (10) feet above the center line grades of the inter-
secting streets, within the triangular area formed by the
two intersecting street lines bounding the lot and by a
line connecting points on each street line located twenty-
five (25) feet from the intersection of said street lines.
5.8 No accessory structure, excluding fences and tem-
porary buildings necessary for construction purposes, is
to be erected prior to the completion of the principal
building. Such temporary construction buildings may be
erected only after the issuance of a building permit for
the principal building and shall be removed within thirty
(30) days of the issuance of a certificate of occupancy, for
the principal buildings; or in the case of a major subdivi-
sion, within thirty (30) days of the issuance of a certificate
of occupancy for the final home in the subdivision.
5.9 No structure shall be erected within the boundary
of any flood plain of within fifty (50) feet of the top of
the bank of any stream, whichever distance represents the
greatest setback from the stream.
5.10 Existing natural features such as streams, lakes,
ponds, trees and the natural configuration of the ground
46a Appendix C
shall be retained wherever possible. If it can be demon.
strated to the satisfaction of the Freehold Township Plan.
ning Board that such features will substantially interfere
with any reasonable proposed use of a property such fea.
tures may be altered only to the extent necessary to permit
such use.
5.11 Appearance of Buildings:
No building or structure shall hereafter be erected, con-
structed, placed or enlarged in any Residence District
which shall be like or substantially like any neighboring
building, or structure, as hereinafter defined, then in exie.
tence or for which a building permit has been issued, or
which is included in the same building permit applica.
tion, in more than three of the following six respects:
A. Height of the main roof ridge above the top of the
plate (all flat roofs shall be deemed identical in this
dimension ) ;
B. Height of the main roof ridge, or in the case of a
building structure with a flat roof, the highest point of the
roof beams above the elevation on the first floor;
C. Length of the main roof ridge, or in the case of a
building or structure with a flat roof, length of the main
roof;
D. Width between outside walls at the ends of the
building or structure measured under the main roof at
right angles to the length thereof;
E. Relative location of windows in the front elevation
or in each of both side elevations with respect to each
other and with respect to any door, chimney, porch or
attached garage in the same elevation;
F. In the front elevation, both (a) relative location with
respect to each other of garage, if attached, porch, if any,
Appendix C 47a
and the remainder of the building or structure, and (b)
either (i) height of any portion of the building of struc-
tures located outside the limits of the main roof measured
from the elevation of the first floor to the roof ridge, or in
the case of a flat roof, the highest point of the roof beams,
or (ii) width of said portion of the building or structure if
it has a gable in the front elevation otherwise length of
said roof ridge or said flat roof in the front elevation.
Buildings or structures whall be deemed to be like each
other in any dimension with respect to which the differ-
ence between them is not more than two feet. Buildings
or structures between which the only difference in relative
location of elements is end to end or side to side reversal
of elements shall be deemed to be like each other in rela-
tive location of such elements.
In relation to the premises with respect to which a
building or structure is sought to be erected, constructed,
placed, altered or enlarged, a building or structure shall be
deemed to be a neighboring building or structure if the lot
upon which it may or any part of it has been or will be
located is any one of the following lots:
A. Any lot on the street upon which the building or
structure to be located on said premises would front which
is the first building or structure on either side of said
building or structure on the same side of the street without
regard to intervening street lines.
B. Any building or structure to be erected on any lot,
any part of a street line frontage of which is across said
street from said premises.
C. Any lot any part of the street line frontage of which
faces the end of, and is within the width of, said street,
if there are less thau two lots between said premises and
the end of said street;
48a Appendix C
D. Any lot any part of the street line frontage of which
is across such other street from said premises or from a lot
referred to in paragraph D of this section.
ARTICLE 6
ZONE REGULATIONS
6.1 Rural Residential Zone:
6.1-1 Permitted Uses:
A. Farms
B. Single Family Dwellings
C. Public Parks and Playgrounds
D. Municipal Buildings essential to the operation of the
Township, subject to general review and recommendation
by the Planning Board.
6.1-2 Permitted Accessory Uses:
A. Private Garage with a capacity for garaging not
more than three (3) automobiles.
B. Tool shed or similar storage building not exceeding
one hundred twenty (120) square feet in building area.
C. Private swimming pools
D. Fences
E. Signs
F. Outdoor barbecue structures
G. Shelters for domestic pets, rpovided that the building
area does not exceed thirty (30) square feet.
H. Essential utilities
I. Farm storage sheds and barns
Appendix C 49a
6.1-3 Uses Permitted Subject to Issuance of a Special
Use Permit:
A. Home Professional Offices
B. Home Occupations
C. Swim-Clubs
D. Churches and Places of Worship
E. Public, Private or Parochial Schools
6.1-4 Area, Yard and Building Requirements:
As specified in the Schedule.
6.1-5 Permitted Modifications:
None
6.2 R-40 Residential Zone:
6.2-1 Permitted Uses:
A. Same as for Rural Residential Zone
B. Planned Adult Communities as defined by this ordi-
nance.
6.2-2 Permitted Accessory Buildings
A. Same as for Rural Residential Zone
B. The following but only as accessory uses to a Planned
Adult Community.
(1) Normal and necessary accessory buildings and facil-
ities, including but not limited to gate houses, garages,
guard houses, storage facilities for maintenance equip-
ment and administrative, social, cultural and recreational
facilities and strictures.
(2) Commercial activities for the convenience of the
residents of the project and their guests are permitted,
50a Appendix C
but must be confined within doors and without
vertising or other display on the outside of
Such facilities should be located out of
ing care of project residents and their guests
mitted if such facilities are not readily and
available.
6.2-3 Uses Permitted Subject to Issuance of a Special
Use Permit:
A. Same as for Rural Residential Zone
B. Garden type, Multi Family apartments, subject to
the provisions of Article 10.26-9.
6.2-4 Area, Yard and Building Requirements:
A. As specified in the Schedule.
B. For Planned Adult Communities subject to Artice
11.
6.2-5 Permitted Modifications:
None.
6.3 Residential Zone R-25:
6.3-1 Permitted Uses:
Same as for Rural Residential Zone
6.3-2 Permitted Accessory Uses:
Same as for Rural Residential Zone
6.3-3 Uses Permitted Subject to Issuance of a Special
Use Permit:
A. Same as for Rural Residential Zone.
Appendix C 5la
B. Garden-type multi-family apartments, subject to the
provisions of Article 10.26-9.
63-4 Area, Yard and Building Requirements:
As specified in the Schedule
63-5 Permitted Modifications:
None.
64 R-20 Residential Zone:
64-1 Permitted Uses:
Same as for Rural Residential Zone
64-2 Permitted Accessory Uses:
Same as for Rural Residential Zone
64-3 Uses Permitted Subject to Issuance of a Special
Use Permit:
A. Same as for Rural Residential Zone.
B. Garden-type, multi-family apartments, subject to
the provisions of ARticle 10.26-9.
6.4-4 Area, Yard and Building Requirements:
As specified in the Schedule.
6.4-5 Permitted Modifications
6.5 R-15 Residential Zone:
65-1 Permitted Uses:
Same as for Rural Residential Zone
6.5-2 Permitted Accessory Uses:
Same as for Rural Residential Zone
52a Appendix C
6.53 Uses permitted Subject to Issuance of a Specia
Use Permit:
Same as for Rural Residential Zone
65-4 Area, Yard and Building Requirements:
As specified in the Schedule
6.5-5 Permitted Modifications:
None
6.6 R-9 Residential Zone
6.6-1 Permitted Uses:
Same as for Rural Residential Zone, except that Farm
are not permitted.
6.6-2 Permitted Accessory Uses:
Same as for Rural Residential Zone, except that Fam
Storage Sheds and Barns are not permitted.
6.6-3 Uses Permitted Subject to Issuance of a Special
Use Permit:
A. Home Professional Offices
B. Home Occupations
66-4 Area, Yard and Building Requirements:
As specified in the Schedule
6.6-5 Permitted Modifications:
None
6.7 Highway Development Zone (B-5):
6.7-1 Permitted Uses:
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Appendix C 53a
B. Retail stores and shops
C. Personal Service establishments
Theatres (indoor), assembly halls, bowling
deans ole tanained eatin. hing
E. Restaurants, cafes and tea rooms.
F. Hotels and motels
G. Motor Vehicle Salesrooms
H. Wholesale business and distributors
L Passenger Bus Stations
J. Research Laboratories and light industries for the
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54a Appendix C
6.7-2 Permitted Accessory Uses:
A. Storage buildings and Garages provided that it cay
be demonstrated to the satisfaction of the Freehold Tow.
ship Planning Board that such accessory buildi ings are
necessary to the successful operation of the principal ug
on the premises, and that a definite economic hardship
or a health or safety hazard would be created if sud,
accessory building were not permitted; and further pro-
vided that no accessory building be used for sale purposes
of any nature.
B. Signs
C. Fences
6.7-3 Uses Permitted Subject to Issuance of a Special
Use Permit:
A. Gasoline Filling Stations
6.7-4 Area, Yard, and Building Requirements:
As specified in the Schedule
6.7-5 Supplementary Regulations:
A. Nothing shall be stored out-or-doors for any pur
pose except in compliance with the following provisions:
1. New or used automobiles on display for sale or
awaiting delivery may be stored out-of-doors as a per-
mitted accessory use to a new car dealership for an indef-
nite period of time, provided that said automobiles are in
operating condition and further provided that they shall
be stored on a paved area constructed to the standards
established in accordance with Land Subdivision Ordi-
nance of the Township of Freehold.
2. All garbage or trash or any other refuse awaiting
disposal shall be stored in a completely enclosed container.
Appendix C 55a
3. Products and materials necessary to and supplemen-
tary to a permitted use and which are customar-
ily stored out-of-doors, may be stored out-of-doors pro-
vided that:
a. The area used for such outdoor storage shall be paved
in accordance with requirements of Article 7, 7.1-6.
b. Said storage shall be permitted only in a rear yard
area.
c. Said storage shall be screened from view from any
public right-of-way.
d. All materials stored out-of-doors shall be arranged
and maintained in a safe, orderly and neat manner.
B. Whereas the basic intended uses for this zone are
not compatible with residential uses and whereas the inter-
mingling of these uses with residential uses might prove
inimical to the health, safety and welfare of persons resid-
ing within the confines of this zone, all residential uses are
hereby excluded from this zone.
68 Service and Supply Zone (B-4):
68-1 Permitted Uses:
A. General business activities including such activities
as Retail Sales, offices, and Banks, eating and drinking
establishments and personal services.
B. Building material storage, supply and sales includ-
ing such activities as lumber yards, mason materials, stor-
age and sales, plumbing and electrical service and sales and
similar storage and wholesale and retail sales designed to
supply and service construction and building activities.
C. Contractors shops, yards and offices.
D. Small repair and machine shops generally employing
fewer than ten (10) persons; and custom shops pri
engaged in the production of articles or products to be
sold at retail on the premises.
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56a Appendix C
E. Commercial laundries and dry cleaners provided thy
any commercial laundry shall be connected with a publy
F. Public garages and gasoline filling stations.
G. Animal hospital and shelters .
H. Public utility garages and storage facilities
I. Printing Shops
J. Public Utility Installations
6.8-2 Permitted Accessory Uses:
A. Storage sheds, except that lumber storage sheds shal
be considered as a principal use.
B. Garage facilities
C. Signs
D. Fences
6.8-3 Area, Yard and Building Requirements:
As specified in the Schedule
6.8-4 Supplementary Regulations:
A. Outdoor storage is permited in any yard subject to
the followin g restrictions:
1. No outdoor storage shall be permitted within ten
(10) feet of any street line or within five (5) feet of any
side or rear lot line.
2. Outdoor storage shall be limited to equipment,
merchandise or material necessary to the operation of the
principal use on the premises, not normally or economic.
ally stored indoors. No junk cars, wrecked cars or cars
damaged by accident or damaged in any other manner,
or which are in such condition that they cannot operate
under their own power; used auto parts or appliances;
COPY BOUND TOO
Appendix C 57a
ysed auto or truck tires; damaged or discarded machinery,
ipment or parts thereof, used or damaged refrigera-
tors, household or electrical appliances or other damaged
or disabled merchandise; or junk shall be stored, main-
tained, or permitted to remain situated in the open on any
ise for more than fifteen (15) days from the time
first placed on said premises, and said items must there-
after be permanently removed from the premises or per-
manently removed from the open and stored with a com-
pletely enclosed bujlding.
Specifically excluded from this time requirement are
disabled or damaged motor vehicles awaiting repair at an
automotive repair shop. For these purposes the above
fifteen (15) day requirement shall be extended to sixty
(60) days in order to permit a reasonable time for insur-
ance adjustment and parts ordering purposes.
3. All garbage, trash or any other refuse awaiting dis-
posal shall be stored in a completely enclosed container.
4. Anything being stored out doors shall be placed and
maintained in an orderly, safe manner.
5. Front yard storage shall be restricted to items being
displayed for sale or rental purposes.
B. (Same as Section 6.7-5. B)
6.9 Neighborhood Business Zone (B-3):
6.901 Permitted uses shall be among those specified
herein, but shall also further be limited to those uses which
are clearly of a nature designed to primarily serve adja-
cent residential areas within a two to three mile radius
and which only incidentally serve other areas.
A. Retail stores and shops such as Grocery Stores, drug
stores, hardware stores, dry good stores, baked goods
stores, meat and poultry stores, flower shops, haberdashery
and apparel shops, shoe stores.
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58a Appendix C
B. Personal services establishments such as
shops, beauty parlors, shoe repair shops, dry Cleaning
shops, tailor shops, self service laundries.
C. Business and professional offices, banks, Post office;
and municipal offices.
6.9-2 Permitted Accessory Uses:
A. Signs
B. Fences
6.9-3 Uses Permitted Subject to Issuance of a Special
Use Permit:
A. Gasoline Filling Stations
6.9-4 Area, Yard and Building Requirements:
As specified in the Schedule
6.9-5 Supplementary Regulations:
A. Nothing shall be stored out of doors for any purpose
except that garbage and trash or any other refuse awaiting
disposal may be stored in a rear yard in a completely en-
closed container.
B. Persons establishing uses in this zone are encouraged
to give particular attention to aesthetic considerations
especially in connection with structural design and the use
of landscaping to soften building lines and provide visual
breaks in parking lot areas.
6.10 Office and Personal Service Zone—1 (B-2):
This zone is intended to be utilized as a buffer zone
between r2sidential zones and more intensive zones, and
as such, each use within this zone shall be designed, con-
structed and operated in such a manner as to create the
least possible disruption to adjacent residential properties.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.