Goldmann, Freund and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
This controversy presents for determination the propriety of defendant-municipality's refusal to rezone a certain area. Plaintiff owns vacant land on the northwest corner of East Broad Street and Springfield Avenue on the outskirts of the Town of Westfield in a rather open area. Under the local zoning ordinance the property is located in a Residence "A" zone. Plaintiff's request that the property be transferred to a business zone was referred to the planning board, which body recommended to the town council that the application be not granted. Thereafter the town council denied the transfer, and plaintiff filed its complaint in lieu of prerogative writ to review the refusal to rezone. The trial court affirmed the action of defendant, entered judgment in defendant's favor and the appeal is taken from the judgment.
The evidence submitted below revealed that properties in the vicinity of plaintiff's (and located in the Residence "A"
zone) are being used for business and non-conforming uses, but these are either on the opposite side of Springfield Avenue from the premises in question or the opposite side of East Broad Street from same. It was further established that there is no business use on the northwest side of East Broad Street from Springfield Avenue in a southerly direction for a mile and a quarter. On the southeast side of East Broad Street, aside from the gas station on the corner and the body shop in the rear of the adjacent property, there is no business in a southerly direction for a mile and a quarter, except for Fairview Cemetery area which is not a commercial use.
The uses in the area aside from the gas station are specialized shopping stands for sale of items usually sold at roadside stands in rural areas. A veterinarian's establishment on the opposite side of Springfield Avenue and approximately one-half mile from the premises in question was constructed under a local variance. The Echo Lake Construction Company uses its premises for storing road equipment and, it is alleged, the use is an illegal one.
On the southwest side of Springfield Avenue and running northwesterly and northerly from the premises in question there is no business until after one passes the town line. This area has a few one-family dwellings and vacant land available for such dwellings until Echo Lake Country Club and Union County Park are reached. The entire area surrounding the premises in question, and on both sides of Springfield Avenue to the Borough of Mountainside and the Township of Springfield on the north and to the Township of Cranford on the southwest, is in a one-family Class "A" residential zone. It is contended that the area has changed and outstripped the zoning ordinance. It is argued that the area is now commercialized to such an extent that it is unreasonable for it to be zoned as residential.
The trial court viewed the property in question and its surroundings. It noted "a pattern of gradual emergence of the Springfield Avenue area from residence to business character by dint of excepted uses," and the proximity of
residential areas which should be safeguarded from a drastic encroachment of a commercial zone of substantial area. Appellant relies heavily on the quoted language of the trial court. Plaintiff here did not apply to the board of adjustment for a variance as provided for in N.J.S.A. 40:55-39, but argues the regulation here is so unreasonable as to dispense with the necessity of such an application, and that it is entitled to the broader relief of rezoning.
We come to the dispositive considerations. It is our opinion that plaintiff should have applied to the board of adjustment for a variance, and not to the governing body for a change of zone. The board of adjustment is the quasi-judicial body created by statute for just such purpose. N.J.S.A. 40:55-32. It might in its sound discretion recommend a possible use which would not conflict with other variances in the vicinity and not be detrimental to the rest of the residence zone. True, such variance could not later be enlarged or changed without further application to the board, but its refusal to grant an extension or change would have to be on reasonable grounds. For the governing body to change the zone for this one parcel would, of course, allow any legitimate business to operate there. Such business might not be in conformity with the general neighborhood and might be detrimental to the rest of the zone. Conlon v. Board of Public Works of City of Paterson , 11 N.J. 363, 366 (1953). See also Collins v. Board of Adjustment of Margate City , 3 N.J. 200 (1949), in which the proper course was followed by an appeal to the board of adjustment for a variance, and not by seeking a change of zone.
Westfield is by reputation a residential community of the first order, and plaintiff's witness so testified. Its zoning ordinance is part of its comprehensive plan to preserve the character of the community. The existence of a planning board bespeaks the same purpose. Plaintiff should have gone to the board of adjustment. Borough of Cresskill v. Borough of Dumont , 15 N.J. 238, 249-250 (1954).
Within the limitations of N.J.S.A. 40:55-30 et seq. the governing body of a municipality ...