On appeals from the Law Division of the Superior Court, certified by the Supreme Court on its own motion.
No. A-94: For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Burling. For affirmance -- Justice Wachenfeld. No. A-95: For vacation -- Chief Justice Vanderbilt, and Justices Heher, Oliphant and Burling. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J.
We are concerned here with the legal sufficiency of a zoning regulation purporting to render the existing use of plaintiff's lands nonconforming and therefore inextensible.
For 20 years or more the plaintiff corporation has conducted a scrap metal business on lands comprising 1 1/2 acres situate in Clifton, New Jersey, in an industrial district delineated by the local zoning ordinance, under a permit issued pursuant to another ordinance regulating junk yards. It has had ownership of the land for the past seven years. It sells scrap metal in bales or bundles, principally to steel mills; and it has undertaken the enlargement of its baling facilities by the replacement of a 10-year-old press now obsolete with a modern press to be housed in a new building. The proposed building is also to contain lavatories and lockers for the employees, and a small shop for tools and equipment. The plant now represents an investment of upwards of $100,000. The new building will cost in excess of $30,000, and the press and mechanism for motive power, $74,000. The baling process involves the use of acetylene torches and shears, to cut the larger and heavier metal pieces to a size conforming to the capacity of the present mechanical unit. The result is "a square bundle to be shipped to the mill." The baling press is a high compression machine powered by a motor, pump and air compressor, all comprising an integral unit. The old press measures approximately 90 inches by 38 inches; and the motor and compressor are housed in a one-story cement block and frame building in size about 21 1/2 feet by 18 feet. The structure in contemplation will measure 14 feet in height, with a subsurface depth of 17 feet. The building inspector refused a permit for the construction of the building, and the landowner thereupon instituted this civil action in lieu of the prerogative writ of mandamus (A-94) to compel the issuance of the permit. The Superior Court ruled that the use was within the prohibition of Section 12 (g) of the zoning ordinance forbidding "additions
or extensions" to a "nonconforming building or use" in excess of 25 per cent of the occupied floor area, or 25 per cent of the cubical content of the building, or 25 per cent of the "service capacity" of the use, and suggested that application for a variance be made to the administrative agency. This was done; but the application was denied on the ground that such a grant would serve to enlarge a nonconforming use (in press capacity from between 20 to 50 tons per day to between 80 and 96 tons per day for automobile scrap and 96 and 200 tons per day for industrial steel) and contravene the policy of the zoning ordinance to contain nonconforming uses, even though Section 12 (g) limiting the enlargement of nonconforming uses, in effect when the application for a variance was made but later repealed, be deemed controlling. It was found that there was no jurisdiction under R.S. 40:55-39 c, as amended by L. 1948, c. 305, p. 1223, and L. 1949, c. 242, p. 779. A recommendation of a variance to the governing body under R.S. 40:55-39 d, as amended, was also refused for the same reason and on the additional ground that "an increase of capacity" would result "in a considerable increase in objectionable noise and smoke." The Superior Court, proceeding in lieu of the prerogative writ of certiorari, (A-95), found no "abuse of discretion" and declined to "substitute its judgment for that of a duly constituted public body." It dismissed an attack upon the validity of the regulation itself as "unfounded and without merit."
Section 11(a), III (f) of the zoning ordinance permits in industrial districts
"All other structures and uses except the following which are specifically prohibited:
"6. Junk yards, automobile graveyards, or dismantling plants, and the storage of second-hand materials for resale, except entirely within an enclosure no part of which is closer than 200 feet to a public street or road.
"7. The storage, baling or treatment of junk, old iron, rags, bottles or scrap paper, except within a building."
The plaintiff landowner maintains that the "building, pit, press, machinery and equipment constitute one structure for the single purpose" of "baling scrap metal"; that the "entire operation" is "within a building," and the use is therefore permissible under the cited exception of subsection 7. Defendants suggest that subsection 7 has reference merely to the "familiar 'junk man'" who makes a day-to-day house-to-house collection of "rags, bottles and junk" for individual resale or baling or bundling "for bulk resale," with or without a "machine, depending upon the material or desired size"; that plaintiff operates what is commonly known as a "junk yard," a use which utilizes the whole of plaintiff's lands as well as the buildings and involves "actual baling * * * in the open," even though "the machinery of the proposed unit would be housed and considered as one unit," and so the use "falls within the terms and regulations" of the cited subsection 6, and is nonconforming. It is said that subsection 7 makes no mention of "junk yards" or automobile "graveyards," while subsection 6 "specifically encompasses such businesses."
The rule of subsection 6 constitutes an arbitrary and unreasonable exercise of the police power comprehended in the constitutional and statutory zoning process. It does not serve the common good and welfare in any of the particulars set down in R.S. 40:55-32. The prohibition in industrial districts of junk yards, automobile "graveyards or dismantling plants," and the "storage of second-hand materials for resale" except "entirely within an enclosure" not closer in ...