On appeal from the Law Division of the Superior Court, certified by the Supreme Court on its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld and Burling. For reversal -- None. The opinion of the court was delivered by Heher, J.
The appeal concerns the propriety of the action taken by the local board of adjustment refusing plaintiffs leave to use their lands at the northeast corner of Lyons Avenue and Clinton Place, Newark, for the operation of a gasoline service station. The ruling was sustained by the Superior Court on a review in lieu of the prerogative writ of certiorari.
Proceeding on the hypothesis that "gasoline or oil stations, automobile filling and cleaning stations and public garages,
while necessary, may be inimical to the public safety and general welfare if located without the due considerations of conditions and surroundings," Section 10 of the municipal zoning ordinance ordains that no permit for such use shall issue "except upon application first made to the Board of Adjustment," which is empowered, after hearing "in the same manner and under the same procedure" as in the case of "exceptions" to the terms of a zoning ordinance, "to recommend in writing" to the local governing body that a permit for such use be granted "if, in its judgment, it will not be detrimental to the health, safety and general welfare of the community, and is reasonably necessary for the convenience of the community." A "public garage" is forbidden within a block of a school, hospital, church, orphan asylum, theater or opera house, public library or a public art museum.
The Superior Court sustained this section of the ordinance as against the challenge of constitutional insufficiency, but found that the board of adjustment had failed "to make the findings required" by that provision and R.S. 40:55-39, as amended by L. 1948, c. 305, p. 1223, and L. 1949, c. 242, p. 779, and remanded the cause for further proceedings to that end if plaintiffs should be so advised.
It is now urged: (a) that the ordinance in this respect constitutes an abortive exercise of the zoning power, "in that it fails to zone the city for the purpose of service stations, by prescribing the districts in which they may be erected"; (b) that if it be deemed an exertion of the general police power "apart from zoning," there is no statute which "authorizes the governing body to delegate the exercise of the police power to the board of adjustment," which performs a quasi -judicial rather than a legislative function in respect of the right to a variance "from the terms of an ordinance which in fact zones," and therefore the power to "act finally" is nondelegable; (c) that considered as an exercise of the general police power, there is no provision for action by the governing body, and, since an affirmative recommendation by
the board of adjustment "does not carry with it a right to obtain a permit," it is "an incomplete act of legislation" and "invalidly operates to prevent the erection of service stations throughout the city"; and (d) that the particular provision does not provide "a standard for the guidance of the board of adjustment in giving its advisory opinion" and "no standard whatever" to control the governing body "in acting upon a recommendation" of the former, and so it is vicious and nugatory whether considered as a "zoning ordinance" or an exercise of "other police power."
The case of Schnell v. Township Committee of Ocean, 120 N.J.L. 194 (Sup. Ct. 1939) is read as requiring the governing body itself to "exercise the reserve power to deal with service stations" as a non-delegable function. It is said that "there remains no reason why" such facilities "should be outside the statutory scheme of prescribed districts and prescribed uses therein," and there is "no more reason to limit the number of stations in a business zone than there would be to limit the number of food markets or restaurants"; and that if the doctrine of the Schnell case "is to be continued," then the final authority should reside in the governing body, "circumscribed by a declared standard," with the role of board of adjustment purely advisory.
The questions thus posed call for a reexamination of fundamental principles and the nature of the statutory exercise of the zoning power, in particular the functions of the local board of adjustment.
The amendment of the State Constitution of 1844 adopted at a special election held on September 20, 1927 (Article IV, Section VI, paragraph 5) did not invest the Legislature with authority not theretofore within its keeping. By Article III, paragraph 1 and Article IV, Section I, paragraph 1 of that Constitution, the people of the State granted to the Legislature full sovereign authority except as therein limited; and this comprehended the police power, i.e., the ...