# Petition for Writ of Certiorari — Township of Freehold v. Schere > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1764%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 410 U.S. 931 ## Text 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. iY FRAT Pree ~ 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 PELL loll alale fale lelelelel*ielelelslelelele Cc <2 ———=— ——— etree ae ae owe ee 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: nennaliacaitaaiaiean te pi gusiiatag onli tiie tenant ~ 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 atlanta ditaekt dun cn on 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. a al ale A li EE bit oes a Ve ae ee 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. coitidna anemia dite tedamnatnitied on tnatehettndaiet, dae et OO CLOSE IN CENTER | 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1764%3A1. Public record. Not legal advice.