For the prosecutors, Kearns & Bruder (Anthony P. Kearns, of counsel).
For the defendants Township of Hillsborough and Township Committee, Herr & Fisher (Ryman Herr, of counsel).
For the defendants Frederick Kaiser et ux., et al., Wharton & Hall (T. Girard Wharton and William T. Stewart, Jr., of counsel).
Before Case, Chief Justice, and Justices Heher and Colie.
The opinion of the court was delivered by
COLIE, J. Certiorari was allowed the prosecutors to attack the legality of the zoning ordinance of the Township of Hillsborough, adopted May 22d, 1946. The prosecutor Emily L. Yoemans is the owner of a tract approximating 95 acres, located in the township. Prosecutors Kenneth B. Dates and Edson W. Beatty are tenants of Emily L. Yoemans, occupying the premises in question. They also hold a written contract for the purchase of said lands, which contract contains a clause providing that the purchasers desire to acquire the
premises solely for the purpose of developing and using the same as an airport and that in the event that they are unable to obtain federal, state or local consent or permission so to use the lands, then the said contract to purchase may, at the option of Dates and Beatty be terminated upon 30 days' notice, and thereafter the agreement and all rights and liabilities of each of the parties thereunder shall cease and terminate.
In 1940 the Planning Board of the Township of Hillsborough was organized and meetings were held in an effort to prepare a zoning ordinance. The minutes of the meeting of the Planning Board of December 7th, 1945, expressed the hope that the draft of the zoning ordinance would be ready in the spring of 1946. The contract between Yoemans and the present tenants was entered into on March 26th and the following day Messrs. Dates and Beatty made application to the township committee for the construction of an airport on the Yoemans property. On April 10th Dates made a further application for permission to construct another building on the said premises. On May 14th, 1946, the Township Committee denied the two building applications above mentioned, and eight days thereafter, on May 22d, 1946, the zoning ordinance was finally adopted. The ordinance divides the township into three zones -- (1) residential and agricultural; (2) business and (3) industrial. In the residential and agricultural zone, it expressly prohibits airports.
Between the date of the adoption of the original ordinance and the adoption of an amending ordinance, the writ of certiorari now returnable was allowed and some time thereafter Kenneth B. Dates and Edson W. Beatty were joined as prosecutors by order of the court and thereafter the defendant Frederick Kaiser and numerous other owners of land within a radius of one-half mile of the proposed airport were admitted as parties defendant.
Prosecutors set forth 14 reasons why the ordinance should be set aside. The meritorious question for decision revolves about section 7, subdivision 2 (f) thereof, which lists among the prohibited uses in a residential and agricultural zone, that ...