Eastwood, Jayne and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.
[27 NJSuper Page 478] This appeal presents the issue of the propriety of the judgment of no cause of action entered by the Law Division, Bergen County, in an action attacking the validity of an amendment to the zoning ordinance prohibiting
hospitals in residential zones and seeking the issuance of a permit to construct an extension to plaintiff's hospital building.
On December 19, 1951 the governing body of Hasbrouck Heights adopted an amendment to its zoning ordinance which, inter alia , prohibits the use of buildings in residential zones as a nursing home, a public or private hospital, sanitarium or place for institutional care or bed care for three or more patients or inmates. The local planning board held a meeting at which it considered and approved the amendment complained of approximately 45 minutes prior to the borough council meeting.
The parcel of land owned by the plaintiff is approximately 204 feet in frontage on Terrace Avenue with a depth of approximately 290 feet, and with access from the rear by means of a common driveway to Berkshire Road. The entire premises are located in a residence zone, but by the provisions of section 12 of the original zoning ordinance, that portion of the premises adjacent to Terrace Avenue, to a depth of 125 feet was in a "C" residence zone, while the remainder of the premises, and the portion on which there had been constructed a Nurses Home and Temporary Hospital, is in a residential "A" zone. It was on this "A" zone land on which plaintiff proposed to erect a building 41 feet by 48 feet as an addition to the hospital.
On July 7, 1952, application was made for a building permit for the proposed structure and the application was rejected. Thereafter, plaintiff instituted its action in the Law Division to declare invalid the amendment in question and to compel the issuance of a building permit. The trial of the action resulted in a judgment of no cause of action.
The plaintiff contends that the amendment to the zoning ordinance is invalid inasmuch as the municipal government failed to observe the mandatory provisions of R.S. 40:55-35, requiring proposed amendments to the zoning ordinance to be submitted to the planning board for consideration and report within a reasonable time, "not less than thirty days," after which the governing body may consider the passage thereof;
that the amending ordinance does not bear a substantial relation to the public health, safety, morals, or general welfare; that to exclude hospitals from all residential zones is an arbitrary fiat and the objections posed by the neighboring property owners were not, of themselves, a proper basis for changes in use to which a property may be put; that the amending ordinance is void in that it purports to amend an ordinance which is void by reason of infirmities of a section thereof.
The original and primary purpose of zoning is to divide a municipality into districts, prescribing and applying different regulations in each district, according to the character of the lands and structures "and their peculiar suitability for particular uses, among other considerations, and uniformity of use within the division." Collins v. Board of Adjustment of Margate City , 3 N.J. 200 (1949). The validity of zoning ordinances adopted by municipalities of our State has been frequently passed upon by our highest courts. The rule of law applicable thereto is well settled and is succinctly stated by Mr. Justice Burling in the case of Monmouth Lumber Co. v. Ocean Township , 9 N.J. 64, 70, 71 (1952), as follows:
"It is well recognized that a zoning ordinance is one of several types of regulation of property by local government, all of which are expressions of the police power. See for example Brandon v. Board of Com'rs of Town of Montclair , 124 N.J.L. 135, 142 (Sup. Ct. 1940), affirmed 125 N.J.L. 367 (E. & A. 1940). Further, it is settled that an exercise of the police power by a legislative body is not rendered unconstitutional merely by the fact that its enforcement works curtailment of private activity, even to the point of prohibition thereof. Collins v. Board of Adjustment of Margate City , 3 N.J. 200, 206 (1949); State v. Mundet Cork Corp. , 8 N.J. 359 (1952); Welsh v. Morristown , 98 N.J.L. 630, 634 (Sup. Ct. 1923), affirmed Welsh v. Potts , 99 N.J.L. 528 (E. & A. 1924); Northwestern Laundry v. City of Des Moines , 239 U.S. 486, 36 S. Ct. 206, 60 L. Ed. 396, 401 (1916). Aside from the necessity for compliance with specific constitutional and statutory provisions proscribing the limits of the exercise of the power, the requisite test for validity of a municipal ordinance of this nature is that it be reasonable, and the burden of proof is upon those who attack the ordinance to show that it is unreasonable in the relation of the regulation to the health, safety, morals, or the
general welfare of the community. Collins v. Board of Adjustment of Margate City , 3 N.J. 200, 206 (1949); State v. Mundet Cork Corp. , 8 N.J. 359 (1952); Brandon v. ...