Clapp, Freund and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
These are three cases involving the validity of provisions of the zoning ordinance of the Town of Kearny. Plaintiffs are owners or occupants of property rezoned by amendment. The sole defendant is the municipality. These appeals are from judgments for defendant.
Prior to amendment an area of some 6,000 to 7,000 feet along the easterly side of Schuyler Avenue was zoned for light industry to a depth of some 500 feet, and beyond that depth for heavy industry. The amendment extended the light industry in depth by an additional 700 feet. By subsequent amendment the property of Joseph Davis Plastics Co. within that additional 700-feet extension was reclassified for heavy industry.
Plaintiffs challenge the treatment of the Davis property as discriminatory and focus a like attack upon the zoning for heavy industry of the property of E.I. DuPont De Nemours Co. and of lands between Harrison Avenue and the Newark Branch of the Erie Railroad, which properties abut the light industry zone on the north and south respectively.
Plaintiffs seek to set aside the amendatory ordinance as arbitrary insofar as their properties are concerned, and alternatively appear to seek to bring the three parcels referred to above into the classification of light industry, except a portion of the DuPont property which had been zoned for heavy industry prior to the amendment.
These alternative demands require separate consideration. Where a plaintiff's property is treated discriminatorily from other property in the area, the ordinance may be set aside as to plaintiff's property, but where plaintiff's property is properly zoned and the discrimination is confined to a relatively small area owned by another, the remedy is not to set aside the entire zone but rather to set aside the preferential treatment of the favored parcel or parcels. Cf.
Town of Marblehead vs. Rosenthal , 316 Mass. 124, 126, 55 N.E. 2 d 13 (Sup. Jud. Ct. 1944).
It cannot be assumed that the municipality would not have adopted the zone if it knew that its treatment of a small segment was invalid. Hence the inquiry must be: (1) whether the zoning can be said to be arbitrary from the standpoint of the treatment of plaintiffs' properties, and (2) whether, if that treatment is unassailable upon that inquiry, the entire rezoning is still so infected by preferential treatment of others as to justify condemnation of the entire scheme as violative of the statutory mandate for uniformity. R.S. 40:55-31.
The area rezoned for light industry beyond the mentioned depth of 500 feet is bounded on the north by the New York and Greenwood Lake Branch of the Erie Railroad and on the south by the Newark Branch of the Erie Railroad. The easterly line of the zone abuts the D.L. & W. Railroad. The area to the west of Schuyler is zoned essentially for residential use, and in fact the use thereof is predominantly so. The first 500 feet of depth on the easterly side of Schuyler Avenue has been zoned for light industry since 1922 and no attack is made upon the propriety of that continued treatment. With respect to the remaining depth of 700 feet rezoned for light industry, the record establishes a considered effort to protect the residential area from the well-known harmful influences and effects of heavy industry. The rezoning was the result of lengthy study by experts in planning and represents the judgment of the planning board and the governing body. Upon examination of the evidence we find no factual basis for judicial intervention. Yanow v. Seven Oaks Park, Inc. , 11 N.J. 341 (1953); Fischer v. Township of Bedminster , 11 N.J. 194 (1952).
We turn, then, to the second aspect on this branch of the case, namely, whether there is demonstrated such preferential treatment of the properties of ...