On appeal from Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher and Burling. For reversal -- Justices Oliphant and Wachenfeld. The opinion of the court was delivered by Burling, J. Wachenfeld, J. (dissenting). Mr. Justice Oliphant authorizes me to state that he concurs in this dissent.
This is an appeal from a judgment of the Superior Court, Law Division, Monmouth County, dismissing the complaint of Monmouth Lumber Company, a New Jersey corporation (hereinafter referred to as the plaintiff), whereby plaintiff sought review of the validity of two zoning ordinances enacted by the governing body of the Township of Ocean, a municipal corporation of this State, and review of a resolution of the Ocean Township Committee which effected the rejection by that body of a variance sought by the plaintiff and recommended by the local board of adjustment. The parties defendant are the said Township of Ocean and one Benjamin Harvey, Building Inspector of the Township of Ocean (hereinafter collectively referred to as the defendants). The appeal was addressed to the Superior Court, Appellate Division, but prior to hearing there, certification was granted upon our own motion.
The controversy resulting in this appeal involves lands and premises one and one-half acres in area, owned by the [9 NJ Page 69] plaintiff, situate between Grant and Sherman Avenues, adjoining the right of way of the New York and Long Branch Railroad Company, in the Township of Ocean, County of Monmouth, and State of New Jersey, more particularly designated as Lot 1, Block 23, on the tax assessment map of said township. Under the zoning ordinance in effect at the time the plaintiff acquired title to the same on April 26, 1946, the premises in question were in an industrial zone of 45 acres in area. The zoning ordinance establishing that industrial zone was adopted on June 6, 1930. On February 20, 1946, the plaintiff secured a building permit, valid for 90 days, for the construction of one office, one "Transit Mix Plant building," and one garage. The office and transit mix plant were completed on May 13, 1946, and operation thereof commenced June 7, 1946, and still continues. The garage was not erected. On April 5, 1948, the township committee adopted an amendment to the 1930 zoning ordinance, by which amendment all of the industrial area above mentioned was rezoned as a Class A residential district. On April 1, 1949, the plaintiff made application for permission to erect, on the premises in question, a garage building 30 feet wide, 80 feet long, and one story or 16 feet in height. This was denied by the township building inspector and plaintiff appealed to the township board of adjustment. The board of adjustment, after a hearing, on July 7, 1949, adopted a resolution recommending to the township committee that the plaintiff's "application" for "an exception or variance" be granted, to permit the construction and use of the garage plaintiff desired to erect, provided it be used for no other purpose than that of storing and housing trucks. On July 18, 1949, the township committee adopted a resolution whereby the aforesaid recommendation of the board of adjustment was denied. The plaintiff filed a complaint on August 17, 1949, in the Superior Court, Law Division, seeking to have the amendatory ordinance of April 5, 1948, set aside insofar as it purported to change the classification of the area wherein plaintiff's property was situate from "Industrial"
to "Class A residential," to have said amendatory ordinance set aside insofar as it affected particularly the property of the plaintiff, to set aside the resolution of the township committee of July 18, 1949, denying the recommended variance, and to require the defendant Benjamin Harvey, Building Inspector of the Township of Ocean, to issue a building permit for the garage aforementioned. Thereafter, on November 7, 1949, the township committee adopted a further ordinance which reclassified the area so that plaintiff's premises thereafter lay partially in a zone E residential district and partially in a zone C residential district. The plaintiff thereupon, on December 9, 1949, filed a supplemental complaint seeking the additional relief of the setting aside of the ordinance of November 7, 1949. The facts stated in the foregoing recital were stipulated by counsel for the parties in the pretrial order and at the trial of the matter. The Superior Court, Law Division, after trial, entered judgment of dismissal on April 9, 1951, in favor of the defendants and against the plaintiff. The plaintiff noticed its appeal from the whole of said judgment to the Superior Court, Appellate Division. Prior to hearing there, as hereinbefore noted, the appeal was removed to this court upon certification granted upon our own motion.
The questions involved on this appeal include constitutionality of the aforementioned ordinances of April 5, 1948, and of November 7, 1949, their conformity with statutory provisions, and the validity of the rejection on July 18, 1949, by the township committee, of the board of adjustment's recommendation of variance. Consideration of the law applicable to these questions under the circumstances of this case requires an affirmance of the judgment of the court below.
It is well recognized that a zoning ordinance is one of several types of regulation of property by local government, all of which are expressions of the police power. See for example Brandon v. Montclair, 124 N.J.L. 135, 142 (Sup. Ct. 1940), affirmed 125 N.J.L. 367 (E. & A. 1940).
Further, it is settled that an exercise of the police power by a legislative body is not rendered unconstitutional merely by the fact that its enforcement works curtailment of private activity, even to the point of prohibition thereof. Collins v. Board of Adjustment of Margate City, 3 N.J. 200, 206 (1949); State v. Mundet Cork Corp., 8 N.J. 359 (1952); Welsh v. Morristown, 98 N.J.L. 630, 634 (Sup. Ct. 1923), affirmed 99 N.J.L. 528 (E. & A. 1924); Northwestern Laundry v. Des Moines, 239 U.S. 486, 60 L. Ed. 396, 401 (1916). Aside from the necessity for compliance with specific constitutional and statutory provisions proscribing the limits of the exercise of the power, the requisite test for validity of a municipal ordinance of this nature is that it be reasonable, and the burden of proof is upon those who attack the ordinance to show that it is unreasonable 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, 206 (1949); State v. Mundet Cork Corp., 8 N.J. 359 (1952); Brandon v. Montclair, supra (124 N.J.L. at p. 149).
The right of municipalities in this State to enact and enforce zoning regulations was provided by N.J. Const. 1844, art. IV, sec. VI, par. 5 (added by amendment Oct. 18, 1927), and is preserved and amplified by N.J. Const. 1947, art. IV, sec. VI, par. 2, and further we are now required to construe constitutional and statutory provisions liberally in favor of municipal corporations formed for local government. N.J. Const. 1947, art. IV, sec. VII, par. 11. Compare R.S. 40:55-2. Compare State v. Mundet Cork Corp., supra.
The plaintiff recognizes the constitutional validity of zoning as an exercise of police power, and it appears from the arguments advanced that the plaintiff's objections are a combination of protestations against the alleged unreasonableness of the ordinances subjected to review on this appeal and assertions that the police power was not exercised by the
defendant township within the confines of the pertinent ...