On appeal from Superior Court, Law Division, Bergen County.
For modification -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. Opposed -- None. The opinion of the court was delivered by Case, J.
The Township of Teaneck caused the several plaintiffs to be summoned before the Municipal Court of the township on complaints charging them with violations of the local zoning ordinance in that, within a residence zone, they maintained a large advertising sign and also a driveway for business purposes. Plaintiffs thereupon filed their complaint in the Superior Court, Law Division, Bergen County, charging that the township, in prosecuting its complaints, had breached agreements earlier made with the Estate of William Walter Phelps, a corporation, and with Garden State Developers, Inc., a predecessor of the corporate plaintiff George H. Beckmann, Inc., and, upon the basis of the alleged breach, plaintiffs prayed that the township and its officers be directed to adopt an ordinance authorizing the matters complained of or take appropriate action to grant variances or exceptions with respect thereto, and that they be enjoined from interfering with the plaintiffs, their successors or assigns, in the use of the premises. The court, having by consent heard the matter without a jury, made a determination of the facts and rendered a final judgment which (1) restrained the township and its officers from prosecuting the summonses and the complaints issued thereon, (2) directed that the members of the township council, "in the exercise of their discretion rezone or consent to a variance, or grant an exception, or consent to a non-conforming use, or take other effective action to permit the use of the site on which plaintiff's office building is erected * * * so as to be lawfully usable for the transaction of real estate, mortgage, insurance and building contractors' business," and (3) that the township and its officers be restrained from interfering with the use of plaintiff's property because of an alleged "paper" street known as Hancock Avenue. The appeal by the township and its associated defendants to the Superior Court, Appellate Division, was certified to us on our own motion.
The Township of Teaneck has consistently endeavored to prevent the invasion of business on either side of State Highway Route 4 running from George Washington Bridge westerly
through the township. The corporate plaintiff lawfully constructed, maintains and uses a one and one-half story structure for specified business purposes at a distance of at least 150 feet southerly from the center line of the highway. The territory between the building and the highway is zoned for residences and against business. The controversy, stated in its simplest terms, is whether the corporation and the associated plaintiffs may (1) erect and maintain adjacent to the highway a large business sign announcing the presence of the building and the business conducted therein, and (2) use for entrance to and exit from the building a driveway which the plaintiffs have constructed between the highway and the building over their lands zoned against business use. The arguments present facts and contentions which we think are in large part extrinsic to, or at least unnecessary and confusing in the determination of, the issues, and we shall endeavor to confine the discussion to what we regard as the controlling elements.
The land was originally a part of a tract owned by the Estate of William Walter Phelps, deceased. On April 15, 1947, following authorizing resolutions, the township entered into a contract with the estate and another contract with Garden State Developers, Inc., the prospective purchaser and developer of the tract with which we are concerned. (Cf. Fraser v. Teaneck Township, 137 N.J.L. 119 (Sup. Ct. 1948); affirmed, 1 N.J. 503 (1949), which, however, did not consider or pass upon the issues here presented.) Those contracts contained the following clause bearing upon the proposal which was later realized by the construction of plaintiffs' building:
"The Township will, by rezoning or consent to a variance, or grant of an exception, or consent to a non-conforming use, or by other effective action, permit the erection of one office building on the area lying on the southerly side of State Highway Route No. 4 and easterly of Decatur Avenue if projected southerly, which is marked on the attached map as 'Business -- Proposed Office Site,' to be used for the transaction of real estate, mortgage, insurance, and building contractors' business provided however that no part of any such building shall be closer than 150 feet of the center line of said State Highway
Route No. 4. It is understood and agreed that the building shall not be used for any purposes except as an office for the transaction of real estate, mortgage, insurance and building contractors' business, and that no construction material shall be stored on the site outside the main walls of the building."
Neither of the agreements had provision regarding the erection of a sign or the construction or use of a driveway. The building, when constructed, was so placed that the land upon which it stood was in an area already zoned with a classification that permitted the lawful construction and use of the building for its business purposes. The highway ran approximately 150 feet to the north of the building, and the north line of the building was coterminous with the north line of the area within which the business use was permitted. The area between the north line of the building and the highway is owned by plaintiffs and was then and is now zoned for residential uses and against business uses. There, immediately adjacent to the highway, is where the sign was erected. It is a structure 8 feet high and 16 feet wide. It proclaims the neighboring presence of plaintiffs' business structure and the character of business conducted therein. It is an announcement of, and in effect an invitation to do, business. It is clearly and exclusively a business structure put to a business use and is a violation of the provisions of the zoning ordinance. Not only so, it is not within the purview of the contract provisions and is contrary to the spirit thereof. To what point was the "business site" specifically kept at a distance of 150 feet if by signs and advertising features it was to be projected immediately along the highway? We find nothing in the agreement which calls upon the municipality to do more than to permit the construction of the building which is now constructed and to permit the building, when constructed, to be used for the operation of the business that is now being conducted there, and we find nothing in the agreement inconsistent with the proposition that the area between the building and the highway shall not be used for business purposes. No rezoning or consent to a variance was necessary to legalize the construction of the building and the use of the structure for
the designated business purposes. After the agreement was entered into, the corporate plaintiff applied to the building inspector of the township and, on June 11, 1947, obtained a permit for the construction. After the construction was completed a certificate of occupancy was issued and the appropriate use followed and is continued. But neither the permit to construct the building, nor the certificate of occupancy after construction, may be warped into a consent that the township purpose to keep the lands along the highway free of business structures should be frustrated. On or subsequent to June 17, 1947, an ordinance was adopted which, as stated in respondents' brief, rezoned "the entire tract in accordance with the agreements." We find it difficult to deduce from the exhibits just what changes were effected from the earlier ordinance in order to accomplish that result, but there appears to be no dispute over the two essential propositions that the site of the business office is so zoned as to permit that use, and that the land from there north to the highway is zoned against business and for residences. The only argument for the ...