On appeal from Superior Court, Appellate Division, whose opinion is reported in 27 N.J. Super. 476.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Burling, J.
This appeal involves an action in lieu of prerogative writ dealing in general with the subject matter of municipal zoning and planning. The Hasbrouck Heights Hospital Association, a New Jersey corporation (hereinafter referred to as the plaintiff), filed the complaint against the Borough of Hasbrouck Heights, a municipal corporation of the State of New Jersey, and certain officers thereof (hereinafter the municipality and the individual defendants are adverted to collectively as the defendants), in the Superior Court, Law Division, seeking relief including the setting aside of an amendatory ordinance barring the construction and use of any building as a hospital, in the residential zones of the municipality in which the plaintiff's land is situated. Judgment for the defendants was entered. The plaintiff appealed to the Superior Court, Appellate Division, which affirmed. Hasbrouck Hts. Hospital Ass'n. v. Hasbrouck Hts., 27 N.J. Super. 476 (App. Div. 1953). The plaintiff petitioned for certification, which we allowed, 14 N.J. 351 (1954).
It was stipulated at the trial that the plaintiff has owned since September 23, 1937 a tract of land on the easterly side of Terrace Avenue in the territorial limits of the defendant municipality, such tract of land being known as lot 9 in block 104 on the assessment map. The evidence shows that this tract lies in part in a "C" residence zone, and in part in an "A" residence zone. The larger portion, in connection with which the present litigation arose, lies in the "A" zone. It also appears from the evidence that the zoning ordinance
of May 9, 1929 permitted in residence zones "Philanthropic or eleemosynary uses or institutions other than correctional institutions or asylums for the insane"; that Ordinance No. 580, a supplemental ordinance approved December 29, 1947, prohibited, in residence zones, "nursing homes for compensation" and "Private sanitoriums and places for institutional care conducted for compensation."
The evidence shows that the plaintiff was incorporated under the act for the incorporation of associations not for pecuniary profit, on October 14, 1931. The hospital renders to the public treatment of emergency and non-emergency patients with exception of maternity, contagious disease and mental cases, and is classified as a general hospital. The original building was completed in 1945, and the municipality on December 28, 1945 issued a certificate of occupancy for the same for use as "Hasbrouck Heights Hospital."
On October 16, 1951 the plaintiff informed the municipal building inspector that it planned an extension to its existing hospital building. Although the plans were submitted no formal application for a building permit was made because the building inspector said he would not accept it.
The minutes of the municipal governing body show that at a regular meeting on November 7, 1951 a residents' petition was received seeking denial of the building permit sought by the plaintiff, and that this petition was referred "to the committee of the whole." At the same meeting an ordinance, No. 652, was submitted for first reading. This ordinance purported to amend the existing zoning ordinances to prohibit in residence zones "public or private hospitals, sanitariums and places for institutional care intended or designed to provide care or sleeping accommodations for more than 3 patients or inmates." No indication of consideration of the merits of this ordinance appears in the minutes of the meeting, but it was passed on first reading without discussion or dissenting vote. No reference of the ordinance to the municipal planning board was made (a municipal planning board being in existence in that municipality). On November 21, 1951 the governing body continued Ordinance No. 652
on public hearing until December 5, 1951, with no reference to the municipal planning board. The minutes of December 5, 1951 disclose that ordinance No. 652 was reported "ready for final action," but public hearing was ordered continued for two weeks to enable the plaintiff to consult with interested property owners. The minutes of the governing body's meeting on December 19, 1951 show only that Ordinance No. 652 was brought to the floor, its passage was protested by the plaintiff, public hearing was closed and the ordinance was adopted. It was approved by the mayor on the same day.
The looseness of the municipal proceedings is disclosed by the following facts:
The evidence demonstrates that during this time (namely October 16, 1951 through December 19, 1951) there was no communication of any nature to the borough clerk or to the planning board or any member thereof from the governing body with reference to consideration of any proposed ordinance by the planning board. The borough clerk testified, however, that he had "standing instructions" that "any ordinance affecting zoning shall be first approved by the Planning Board before they are adopted by the Mayor and Council." The borough clerk, who was also secretary of the planning board, further testified that he orally asked the chairman of the planning board to call a meeting. He testified that notices were sent out without specifying the purpose of the meeting or mentioning Ordinance No. 652, but no copy was made for the records of the planning board. The planning board met at 7:30 P.M. on December 19, 1951, pursuant to these notices. The borough clerk also was permitted to testify that neither the plaintiff nor the public was given notice of the planning board meeting. The minutes of the planning board disclose that Ordinance No. 652 was presented for consideration (although the record does not disclose ...