McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.
The defendant municipality appeals from a summary judgment of the Superior Court, Law Division, setting aside the provisions of the revised zoning ordinance adopted by the Township Committee on July 12, 1949, fixing the minimum size of dwellings in the several zones.
Lionshead Lake, Inc., is the owner of a tract of land consisting of approximately 2,000 building lots, on which it has erected 81 homes on approximately 245 lots. Under the revised zoning ordinance, its property is located in the residence zone "B." The ordinance, inter alia , fixes the minimum size of dwellings not only in zone "B," but in all other zones created thereby.
Plaintiff filed its complaint in lieu of a prerogative writ under Rule 3:81 to vacate and set aside the zoning ordinance, charging that its provisions were unreasonable, arbitrary and adopted without due regard to the character of the community; that it was an unreasonable exercise of power, contrary to the provisions of the State Constitution and amounted to a confiscation of private property without due process of law. Subsequent to the filing of its complaint, plaintiff moved for a summary judgment. On May 19, 1950, after considering the respective affidavits of the parties and arguments of counsel, the court ordered the entry of a summary judgment in favor of the plaintiff, whereby it set aside and declared invalid the provisions of the ordinance fixing the minimum size of dwellings. From this determination the defendant appeals.
The Township contends that plaintiff's action is premature; that plaintiff has not exhausted its remedies before the administrative tribunal, which it must pursue before the appellate court will entertain an action in lieu of a prerogative writ; and that the court lacked jurisdiction to grant a summary judgment. The plaintiff advances its arguments to the contrary.
The determination of the questions raised by plaintiff in its complaint creates a factual issue and this is clearly disclosed by a reading of the affidavits submitted by the parties
at the hearing of the motion for summary judgment. The real issue here is the reasonableness of the control of property for the public good. "The touchstone of the reasonableness of the control is to be found in the relation of the regulation to the health, safety, morals, or the general welfare of the community." Collins v. Board of Adjustment of Margate City , 3 N.J. 200, at p. 206 (1949). Reasonableness is a fact question. American Grocery Co. v. New Brunswick , 124 N.J.L. 293 (Sup. Ct. 1940); affirmed, 126 N.J.L. 367 (E. & A. 1941). In the face of the unresolved factual issue here, we find the court erred in directing the entry of a summary judgment. As is held in Hodes v. Dunsky , 5 N.J. Super. 333, at p. 338 (App. Div. 1949):
"On the motion for summary judgment, conflicting versions of the facts were presented, and widely varying inferences might be drawn. A summary judgment should be granted only if it is obvious that there is no genuine issue and that, as a matter of law, the moving party should have judgment. Rule 3:56-3. Such a judgment should be granted only with much caution. Mitchell v. Wrightstown Community Apartments , 4 N.J. Super. 321 (App. Div. 1949)."
The plaintiff's action is not premature. It is conceded that plaintiff not only builds houses but also sells building lots. Plaintiff's attack was directed at the validity of the zoning ordinance. It is clear that under Article IV, Section VI, paragraph 2, of the 1947 Constitution, and as implemented by R.S. 40:55-30 (P.L. 1948, c. 305), the zoning authority of municipalities was extended to permit the regulation of "the nature and extent of the uses of land." Defendant seems to misconceive the nature of plaintiff's action and treats it as one wherein plaintiff is seeking a variance from the applicable provision, whereas plaintiff attacks the ordinance as an unreasonable restriction upon the future use of the land in question. In view of the nature of plaintiff's action, as was held in the case of Ingannamort v. Fair Lawn , 133 N.J.L. 194 (Sup. Ct. 1945), the court may properly review the reasonableness
of such an ordinance. In the Ingannamort case the court ...