On appeal to Appellate Division from Superior Court, Law Division, certified to Supreme Court of its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- Justice Heher. The opinion of the court was delivered by William J. Brennan, Jr., J.
[11 NJ Page 365] We certified of our own motion the appeal of the defendants to the Appellate Division from a judgment entered in the Law Division setting aside an ordinance amending the zoning ordinance of the City of Paterson. The ordinance removes a single lot approximately 120x141 feet at the southeast corner of Broadway and East 33rd Street from the Residence A Zone, "perhaps the finest residential section of the municipality," and constitutes it a Business 3 zone.
Appellants defend the ordinance upon the ground that the restriction of the lot to use for a single-family dwelling is so arbitrary and unreasonable by reason of circumstances peculiar to it and not applicable to other lots of the district as to make the restriction invalid in its application to the lot, and argue therefore that the "municipality may itself recognize that the zoning ordinance is arbitrary and invalid as to the particular parcel of land and may satisfy its statutory and constitutional obligation by amending its zoning ordinance and thereby giving the property the treatment which the statute and Constitution required."
But R.S. 40:55-32 requires that "Such regulations shall be in accordance with a comprehensive plan" designed to promote the specified statutory purposes related generally to the health, safety and welfare of the community. It is true that the mere fact that the ordinance affects only a single lot does not show that it is deficient in this statutory requirement. The validity or invalidity of the ordinance depends upon more than the size of the lot or the fact that the lot is surrounded by uses of another character than those for which the lot is zoned. 8 McQuillin, Municipal Corporations (3 rd ed. 1950), p. 147 et seq. However, when the change of zone is not made with the purpose or effect of establishing or furthering a comprehensive zoning scheme calculated to achieve the statutory objectives but is designed merely to relieve the lot of the burden of the restriction of the general regulation by reason of conditions alleged to cause such regulation to bear with particular harshness upon it, the ordinance is invalid as not being "in accordance with a comprehensive plan" and as granting "in effect, a special exception or variance from the restrictive residential regulation, thereby circumventing the board of adjustment to which is committed by our Zoning Act (R.S. 40:55-39, as amended by L. 1948, c. 305, sec. 6, p. 1223, and L. 1949, c. 242, sec. 1, p. 779) the quasi-judicial duty of passing upon such matters, at least initially, in accordance with prescribed standards, * * *." Speakman v. Mayor and Council of
North Plainfield, 8 N.J. 250, 257 (1951); Lynch v. Hillsdale Borough, 136 N.J.L. 129 (Sup. Ct. 1947), affirmed 137 N.J.L. 280 (E. & A. 1948); Guaranty Construction Co. v. Town of Bloomfield, 11 N.J. Misc. 613 (Sup. Ct. 1933); Campbell v. Hillsdale, 12 N.J. Super. 182 (App. Div. 1951); Ridgefield Terrace Realty Co. v. Borough of Ridgefield, 136 N.J.L. 311 (Sup. Ct. 1947); DeMott Homes etc., Inc. v. Margate City, 136 N.J.L. 330 (Sup. Ct. 1947), affirmed 136 N.J.L. 639 (E. & A. 1948); Cassinari v. City of Union City, 1 N.J. Super. 219 (App. Div. 1949); Vine v. Zabriskie, 122 N.J.L. 4 (Sup. Ct. 1939); Kerrigan Development Co. v. City of Newark, 2 N.J. Super. 590 (Law Div. 1949); Phillips v. Township Council, etc., Teaneck, 120 N.J.L. 45 (Sup. Ct. 1938), affirmed 122 N.J.L. 485 (E. & A. 1939).
The Law Division was clearly right in setting aside the instant ordinance. There was proof that the lot, vacant for more than 40 years, is not and is unlikely to be attractive as the site for a single family home. The city planning board in 1949 took into account the special conditions of the location which produce this result. The board concluded that another use should be sanctioned but because of the character of the neighborhood that such other use should be limited to a "professional type of building or its equivalent." It was against this background that the owner contracted to sell the lot to the Broadway Bank and Trust Company which desired a location for a branch bank. The plans for the branch bank were submitted to the planning board, which, in purported compliance with its function under R.S. 40:55-35, as amended by L. 1948, c. 305, sec. 4, p. 1222, to approve or disapprove proposed amending ordinances, approved the instant ordinance but carefully stated in its letter of November 9, 1951 that the approval was for the purpose of permitting "The Broadway Bank and Trust Company to build a branch bank with off street parking."
The technical assistant to the planning board testified at the public hearing on the ordinance before the Board of Public Works and disclosed that the branch bank project was
considered by the planning board to be a "neighborhood type" use. However, there are many uses allowable in a Business 3 zone not of the "neighborhood type" which the municipal officials frankly acknowledged would be most undesirable in this neighborhood. Several objectors at the public hearing pointed out the danger that the lot might be put to one of the undesirable uses if for any reason the branch bank was not built. Indeed, the owner's expert witness testified that his opinion of the desirability of rezoning the lot was based upon the location there of the branch bank and said he would change his opinion "according to what structure would be in question" if the proposal related "to any other type of business allowed under a Business 3 Zone." The chairman of the Board of Public Works answered the objectors by saying that the ordinance might be repealed "If for example something should happen and the bank or other structure applied for could not be erected by the applicant."
We fail to see even a debatable basis upon which to support a conclusion that this ordinance is in accordance with a comprehensive plan. It very clearly appears that the ordinance was not passed to permit all of the uses allowable in a Business 3 zone, which necessarily would be in view if the ordinance was purposed to establish or further a comprehensive zoning plan. To the contrary, the record brings us to the inescapable conclusion that the ordinance was adopted only to relieve the lot of the difficulties special to it and to permit the construction of the branch bank as not inharmonious with the residential character of the district. Indeed the implication is very plain that the ordinance would not have been adopted except upon the understanding that the branch bank would be built.
The action of the Board of Public Works in adopting the ordinance thus in fact constitutes an unlawful usurpation of the jurisdiction exclusively reserved by the Zoning Act to the local board of adjustment to grant, or recommend to the governing body the grant of, a variance, R.S. ...