On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant and Wachenfeld. For reversal -- Justices Heher and Burling. The opinion of the court was delivered by Wachenfeld, J. Burling, J. (dissenting). I am authorized by Mr. Justice Heher to state that he concurs in the views expressed herein.
The defendant's zoning ordinance was set aside in so far as it affected the plaintiffs' property.
The land is known as Lots 3, 26C and 27 in Block 215 on the assessment map of the City of Englewood and is all located in one block on the east side of Grand Avenue between Madison Avenue on the north and VanNostrand Avenue on the south. There are six properties in the block fronting on Grand Avenue, including the property of the plaintiff Mary T. McKeever, on which there is erected an old one-family residence. The parcel on the corner of Grand Avenue and Madison is occupied by a gas station and repair shop. On another parcel at the corner of Grand and VanNostrand Avenues owned by the plaintiff George K. McKenzie, there is a small building used as a real estate office. Of the three remaining parcels, two have residences and one is vacant land owned by the plaintiff Edward E. McKeever.
The original zoning ordinance of 1923 placed this block, together with the corresponding block on the opposite side of Grand Avenue, in the business zone. It remained so during various revisions until 1949, when by an amendment of the zoning ordinance the entire block, which had been in a business zone for 26 years, was taken out of that classification and declared a residential area. The other side of the street, however, continues as a business zone. The net result is Grand Avenue, in this particular block, is zoned for business on one side and for residence on the other.
Grand Avenue is a much traveled and a very busy highway. It accommodates 28 bus lines and traffic is heavy and constant.
This action was instituted to have the ordinance declared void in so far as it affects the plaintiffs' properties. Scarborough Apartments, Inc., Realty Investors, Inc., and F.A.R.
Realty Company, owners of other properties in the city whose classification was changed by the 1949 amendment, were originally parties-plaintiff but took a voluntary dismissal.
"These restrictions are unnecessary and unreasonable, and that the ordinance, in so far as these people are concerned, is unconstitutional; not within the purview of the statute, and it is unreasonable, arbitrary and capricious,"
and entered judgment in favor of the remaining plaintiffs setting aside the amended ordinance as it affected them.
The Appellate Division affirmed the disposition made in the trial court, declaring the plaintiffs had met the burden of showing the amended ordinance was unreasonable and arbitrary in its effect upon their property, saying:
"The zoning on one side of the street for business and the other side for residential uses, in this particular case, constitutes a distinct disservice to the policy of the statute. The plaintiffs' properties are in a general area much more devoted to business than to residence use. The municipality cannot lift them out of a natural use merely because its experts think it would be better to do so."
On our granting its petition for certification, the city appeals, contending it "has the power to zone particular sections of a municipality based on past and present use of the properties and power to zone in relation to a division of districts on either side of the street," and that the zoning ordinance in question was a proper exercise of power by the City of Englewood in so far as it related to the properties of the plaintiffs.
The right to zone is not disputed. Admittedly local governments have been given a broad constitutional and statutory authority in exercising this prerogative, but it is asserted the zoning ordinance, valid in its generally ...