For the prosecutors, Edward R. McGlynn.
For the defendants, Alfred J. Grosso (Milton M. Unger of counsel).
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. On March 10th, 1936, Mansfield & Swett, Inc. (hereinafter referred to as the prosecutor), contracted to purchase from its co-prosecutor, Ridge Holding Co., a tract of land situate in the town of West Orange, at the northwest corner of Gregory avenue and Northfield road, comprising four and a half acres, and containing an old dwelling house -- since demolished -- and outbuildings. Shortly thereafter, it prepared and presented to the town's board of commissioners for approval a survey and map delineating a proposed subdivision of the tract into nineteen lots and two streets, the development to be known as "Shadowlawn." The lands are located in a "residential" zone delimited by the local zoning ordinance; and it is planned to erect thereon nineteen dwelling houses for sale at prices ranging between $15,000 and $18,000.
In accordance with the provisions of an existing ordinance, adopted pursuant to the authority bestowed by chapter 235 of the laws of 1930 (Pamph. L. 1930, p. 1039; Rev. Stat. 1937, 40:55-1 et seq.), creating a planning board and investing it with authority "to effect the adoption of a master plan" for the municipality, and "to adopt regulations governing the subdivision of land, to approve plats showing new streets or highways and to determine and fix the minimum sizes of lots and to establish building lines," and generally to exercise the authority conferred by the cited statute, the municipal governing body, at a meeting held on May 5th, 1936, referred the matter to the planning board "for their recommendations in the premises." That body, after public hearing had, "disapproved the proposed plan." The transcript of the minutes incorporated in the return discloses the rejection was "due to the fact" that the plan "does not conform with the developments along Gregory avenue, between Northfield road and Mt. Pleasant avenue, and that the greater number of property owners expressed their opinion objecting to same at public hearing held * * *."
The proceedings were thereupon brought into this court by certiorari, with the result that the "record" was "remanded
to the planning board in order that the grounds of disapproval may be 'stated upon its records' as required by the statute." 15 N.J. Mis. R. 441.
Thereafter, and pursuant thereto, the planning board -- by resolution adopted on June 3d, 1937 -- set down the reasons for the disapproving action. In substance, these are (1) that the proposed development is not in keeping with the character of the neighborhood and would so decrease the "ratables of surrounding properties" as to entail financial loss to the municipality; (2) that it would effect "an increase in density of population on the premises in question where none now exists," and would create additional traffic hazards, particularly for school children and the fire department, and place upon the municipality "the burden of additional policing" and "necessitate additional supervision of traffic;" (3) that the proposal is "contrary to the unanimous wish of practically all the property owners between Northfield road and Mt. Pleasant avenue," and is "an innovation * * * not deemed beneficial to the municipality or to the neighborhood;" and (4) that approval of the plan "would interfere with safety, health and general welfare of the community."
The primary question for determination is the constitutional validity of the cited enabling statute. The insistence is that it is violative of the due process clauses of the federal and state constitutions, in that "it deprives an owner of the proper use of his property." It is said that zoning does not embrace planning, and that the cases classifying municipal zoning as outside the general police power of the state are, by analogy, decisive of the question. Ignaciunas v. Risley, 98 N.J.L. 712; affirmed, sub nom. State v. Nutley, 99 Id. 389; H. Krumgold & Sons v. Mayor, &c., of Jersey City, 102 Id. 170.
But we do not perceive the analogy. While planning and zoning are sometimes considered so closely of kin as to constitute a single conception, they do not cover identical fields of municipal endeavor. Although municipal planning embraces zoning, the converse of the proposition does not hold true. They are obviously not interchangeable terms. Zoning may not entirely exclude planning, but it obviously does not embrace planning in its entirety.
Zoning is a separation of the municipality into districts, and the regulation of buildings and structures in the districts so created, in accordance with their construction and the nature and extent of their use. This is the constitutional concept of the term. Article IV, section VI, paragraph 5 of the state constitution, effective October 18th, 1927. It is the dedication of the districts delimited to particular uses designed to subserve the general welfare. It pertains not only to use but to the structural and architectural design of buildings.
Planning, on the other hand, is a term of broader significance. It connotes a systematic development contrived to promote the common interest in matters that have from the earliest times been considered as embraced within the police power. Under the cited statute (section 5), the planning board is charged with the duty of adopting "a master plan for the physical development of the municipality, including any areas outside of its boundaries which, in the board's judgment, bear essential relation to the planning of such municipality," particularly in respect to the "general location, character and extent of streets, subways, bridges, waterways, water fronts, parkways, playgrounds, squares, parks, aviation fields," and so forth. The governing body may then, by ordinance, "establish the master plan" so prepared; and it shall thereupon (section 7) be "deemed official and conclusive with respect to the location and width of streets, highways and parkways and the location and extent of public parks and playgrounds shown thereon," and is expressly "declared to be established to conserve and promote the public health, safety, morals and general welfare." And the governing body may also, likewise by ordinance (section 11), empower ...