On appeal from the former Supreme Court.
For reversal: Chief Justice Vanderbilt and Justices Heher, Oliphant, Wachenfeld, and Ackerson. For affirmance: None. The opinion of the court was delivered by Vanderbilt, C.J. Justice Oliphant concurred in the result.
[1 NJ Page 510] This is an appeal by the Borough of Cresskill from a judgment of the former Supreme Court setting aside its zoning ordinance.
The Borough is a small residential community in Bergen County, comprising about 1,300 acres and having a population of approximately 2,300 persons. In an effort to retain its residential character, the defendant in 1941 adopted a stringent zoning ordinance, establishing four zones, three of which are entirely residential and the fourth ("D" zone) is for "commercial districts for business centers." The pertinent portion of the ordinance dealing with the "D" zone reads (Article 4, § 4):
"A. In any Commercial 'D' District, no building or premises shall be used and no building or part of a building shall be erected which is arranged, intended or designed to be used in whole or in part by any fabricating, manufacturing, converting, altering, finishing or assembling where mechanical power exceeding one horsepower electric motor is used, and where the major object of the establishment is to produce goods for sale other than at retail on the premises, or to furnish a service other than for residents of the locality, and where more than five mechanics or workers are habitually engaged on such work, except that in the following listed industries the maximum number of workers engaged on such work shall be as specified below:
"Carpet cleaning employing two workers.
"Dry cleaning shop employing two workers.
"Dyeing where not more than one dyer is employed.
"Enameling, japanning or lacquering, only where the liquid is applied in tanks of not over five cubic feet capacity.
"Tinsmiths, plumbing, gas, steam or hot water fitting shop employing two workers on the premises.
"Milk bottling or distributing station employing three workers.
"No manufacturing except as above set forth shall be permitted in any Commercial 'D' District."
Early in 1946 the prosecutor purchased a tract of vacant land situated in a commercial zone but abutting on a residential district and distant only two blocks from the public school. Without making any inquiry of the borough officials, the prosecutor filled in the land at an estimated cost of $6,000.00 and, in the middle of May, 1946, without obtaining a permit or applying for a variance, commenced the manufacture of concrete slabs in the open. The slabs were made for sale but not at retail on the premises. The manufacturing operations ...