For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Jacobs, J.
This is an appeal by the plaintiff, certified by this court on its own motion, from judgments for the defendants entered in the Law Division at the close of the plaintiff's case.
The defendant Teaneck Tryon Company is the owner of a tract of land composed of six lots and located at the southwesterly corner of Tryon Avenue and Teaneck Road, in the Township of Teaneck. Under the township's zoning ordinance five of the lots nearest Teaneck Road are within the business zone whereas the sixth is within the Class A residential zone. The plaintiff is the owner of a home in the residential zone, located at 38 Tryon Avenue and adjoining the sixth lot. In 1950 the Teaneck Tryon Company announced that it planned to erect a shopping center with parking facility on its tract and that the defendant The Great Atlantic & Pacific Tea Company would occupy a portion thereof. In July 1950 the plaintiff's attorney wrote to the defendant James T. Welsh, Municipal Manager of Teaneck, referred to the proposed construction, and stated that he believed that the business zone did "not embrace the
property which will be used for parking." In August 1950 he wrote to Teaneck Tryon Company advising that the proposed use of "that portion of your property which fronts on Tryon Avenue as a parking lot" would violate the zoning ordinance and would result in legal proceedings.
Under date of June 25, 1950, Teaneck Tryon Company filed application for a building permit to construct a building at 1548, 1550, 1552, 1560 Teaneck Road in accordance with plans and specifications. The application was approved, construction was begun shortly thereafter, and the building was completed in April 1951. The building is entirely within the business zone, and under date of May 7, 1951 the defendant George M. Cady, Superintendent of Buildings, issued a certificate of occupancy which states that "Permission is hereby granted pursuant to Ordinance No. 826, Section 12 and other applicable ordinances to Teaneck Tryon Co. to occupy building located at 1552 and 1560 Teaneck Rd. for the following purpose only -- stores." It is now occupied by The Great Atlantic & Pacific Tea Company and other tenants. The abutting land along Tryon Avenue including lot six has been paved and is used as a parking lot adjunct to the building; a sign prominently displayed on the building advertises A & P coffee and reads "Free Parking." Under date of April 19, 1951 the plaintiff's attorney wrote a second letter to the municipal manager complaining about the proposed use of the parking lot in the residential zone. A reply dated April 23, 1951 notified him that the matter would be discussed with the township attorney and he would be advised.
In due course thereafter the plaintiff filed a complaint, later amended, in the Law Division. The amended complaint alleged that the use of the land, within the residential zone and adjoining his home, for parking purposes, was in violation of the zoning ordinance and had caused disturbance, annoyance and discomfort to him and members of his family and had greatly depreciated the value of his property for residential purposes. It sought (1) an injunction restraining
the private defendants, The Great Atlantic & Pacific Tea Company and Teaneck Tryon Company, from using the land in the A residence zone for parking purposes, plus damages, (2) an order compelling the defendant municipal officials to enforce the zoning ordinance against The Great Atlantic & Pacific Tea Company and Teaneck Tryon Company, and (3) an order modifying and amending the certificate of occupancy to permit only the portion of the premises within the business zone to be used for business purposes. At the trial the testimony on the plaintiff's behalf, including the reasonable inferences therefrom in his favor (Dobrow v. Hertz, 125 N.J.L. 347, 348 (E. & A. 1940)), adequately established that lot six, located within the A residence zone, was being used by the private defendants as a parking lot adjunct to the building and that such use had caused serious inconvenience, annoyance and discomfort to the plaintiff and his family and had depreciated the value of his property. Nevertheless, the court granted the motion to dismiss made at the close of the plaintiff's case, and the present appeal is from the ensuing judgments entered in favor of the defendants.
The first contention advanced by the defendants in support of the lower court's action is that Teaneck's zoning ordinance, adopted prior to the 1947 Constitution, did not and legally could not regulate the use of vacant land such as lot six. Under the current decisions of this court it may no longer be doubted that reasonable zoning regulations may be justified as an exercise of the police power, even apart from the express constitutional provision therefor. Schmidt v. Board of Adjustment, Newark, 9 N.J. 405 (1952); Ward v. Scott, 11 N.J. 117 (1952); Fischer v. Township of Bedminster, 11 N.J. 194 (1952). In the exercise of the police power vacant land as well as buildings may be subjected to zoning regulations; indeed, it would seem incongruous to divide a community into residential
and business zones and then permit business without restriction in the residential zone on land bearing no structure. It is true that under the more restrictive view of zoning which had been entertained prior to our Constitution of 1947, doubts had been expressed as to the extent of the zoning power over vacant lands; nevertheless, there were decisions of the former Supreme Court which had unequivocally asserted such power. See 420 Broad Ave. Corp. v. The Borough of Palisades Park, 137 N.J.L. 527, 529 (Sup. Ct. 1948); Ridgewood Air Club v. Bd. of Adj. of Ridgewood, 136 N.J.L. 222, 226 (Sup. Ct. 1947). In any event, it had been explicitly determined by the Court of Errors and Appeals that where, as here, a tract contained a business structure and vacant land used in conjunction therewith for parking or ...