McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
[12 NJSuper Page 194] Plaintiff seeks a declaration that the application of the zoning ordinance of the
City of Orange to plaintiff's property at 395 South Center Street is unreasonable, arbitrary and capricious and that the ordinance is unconstitutional insofar as it affects such property.
South Center Street, a cross-town artery, runs north and south. Plaintiff's tract is on the west side of the street, two and one-half blocks south of Central Avenue, a main thoroughfare running east and west.
The frontages on Central Avenue east and west of South Center Street are classified in the business zone.
The lands south of Central Avenue on both sides of South Center Street to the Village of South Orange line, about three-fourths of a mile, were originally classified in the single-family Residence A zone which extends west from South Center Street one-third to one-half mile to the east side of Lincoln Avenue.
The zoning ordinance was enacted in 1922. The governing body amended the ordinance from time to time to change certain lots along South Center Street, all located within a short distance south of Central Avenue, from Residence A to Residence C zone to permit the erection of apartment and garden-type apartment multi-family structures. Two of these locations, also on the west side of South Center Street, are between plaintiff's tract and Central Avenue. One is within a half block of Central Avenue and the amendatory ordinance affecting it was enacted in 1928. The other is at 341-361 South Center Street, only 300 feet north of plaintiff's tract, and is a garden type authorized by an amending ordinance adopted on October 21, 1947.
On the east side of South Center Street the frontages for two blocks south of Central Avenue have been reclassified Residence C, most recently by an amending ordinance adopted in 1940 under which apartments were constructed directly opposite the garden-type apartment at 341-361 South Center Street. Another, and the last, amending ordinance affecting the east side of the street was adopted in 1945 as to 468-512 South Center Street, about a block south of plaintiff's tract, and a garden-type apartment has been erected thereon.
The gist of plaintiff's argument is that these several changes have effectively destroyed the zoning ordinance as a comprehensive plan, at least so as to make its application to plaintiff's property to restrict the use of that property to single-family residences, unreasonable, arbitrary and capricious. On that ground plaintiff applied on March 20, 1950, to the governing body of the city and sought the enactment of an amendatory ordinance to classify plaintiff's property in a Residence C zone to permit the erection thereon of garden-type apartments. The application was denied. Plaintiff thereupon brought this suit. The Law Division, Essex County, after trial, dismissed the complaint and this appeal is from the judgment of that Division entered July 17, 1950.
The governing body's resolution of April 18, 1950, denying plaintiff's application enumerates several reasons, among which, and particularly relied on by the city as completely supporting the denial, are that "to grant the proposed zoning change for applicant would be in violation of the zoning program and plan heretofore adopted in the City of Orange," and "the Master Plan of the City of Orange specifically sets forth that the land area both surrounding and including lands of Birkfield Realty Co. is residential property confined to single one family residences only, as defined in the Zoning Ordinance of the City of Orange."
The "zoning program," "plan" and "Master Plan" referred to is the zoning phase of the master plan for the future physical development of the city being developed on the authority of R.S. 40:55-6 by the Orange Planning Board created by a 1934 ordinance. That phase of the master plan was completed and promulgated by the planning board in December, 1947, and was adopted by the governing body. The planning board's recommended program for this neighborhood is the rezoning as a Residence C district of the frontages not already so classified on the easterly side of South Center Street lying between Central Avenue and the southerly boundary line of 468-512 South Center ...