Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[35 NJSuper Page 96] Plaintiffs brought an action in lieu of prerogative writ seeking judgment that: (a) section 1, subparagraph 25 of the new zoning ordinance of Newark, adopted June 9, 1954 and effective July 1, 1954 (Revised Ordinances of Newark, c. 36, sec. 36.1, subsec. 25), defining "launderette" constitutes an arbitrary exercise of the zoning power and is ineffectual as a bar to plaintiffs' rights to effect pickup and delivery service in connection with their respective launderettes; and (b) the ordinance, as it defines "launderette" and prohibits pickup and delivery service, is unreasonable and discriminatory, and therefore void and of no force and effect. There was judgment for defendants. Marie's Launderette, Inc., v. City of Newark , 33 N.J. Super. 279 (Law Div. 1954). This court on January 19, 1955 enjoined defendants from enforcing the section in question insofar as it prohibits pickup and delivery service, pending determination of the appeal.
Automatic Laundry Operators Association, one of the plaintiffs, is a corporation of the State of New Jersey, having its principal place of business in Newark. It has 24 members who are engaged in the automatic laundry business in various locations in Newark, many of whom conduct pickup and delivery service in connection with such business. The remaining plaintiffs were, both prior to July 1, 1954, the effective date of the ordinance, as well as subsequent thereto, engaged in the launderette business as the same is defined by the ordinance:
"25. Launderette. Also described as automatic wet wash business. An establishment only for the washing and drying of clothing brought in by the customer and in which such washing and drying is performed with the use of mechanical equipment, and for which a fee is charged. No pick-up or delivery by the management or others in connection therewith is permitted."
The places of business of four of these plaintiffs are located in the second and third business zones of Newark, and the fifth has his place of business in the fourth residential district of the city. Section 36.7, subsection 2 of the Revised Ordinances permits the ground floor of any building in a first business district to be used for hand laundries and launderettes. (A "hand laundry" is defined by sec. 36.1, subsec. 22 as an establishment where clothes are received for washing and ironing, and where the work is done by hand using no more than two washing and two ironing machines and no more than two horsepower in the aggregate, and "to and from which establishment the clothes are carried by the customer.") Section 36.8, subsection 2 of the Revised Ordinances permits a building in a second business district to be used for any purpose except those enumerated therein, among the latter being "laundry, other than hand laundries or launderettes." Thus, launderettes are a permitted use in second business districts. They are also allowed in third and fourth business districts and in all of the industrial districts (sec. 36.9, subsec. 2, and sec. 36.10, subsec. 2).
Section 36.22 of the Revised Ordinances prohibits the parking of commercial vehicles on any property, private road
or public street within the first, second and third residence districts, except that the parking of commercial vehicles "for such reasonable time as may be required in pickup or delivery service to such districts" is not prohibited. And section 36.23 sets out the requirements for off-street parking and loading berths in connection with new buildings and new additions to existing buildings.
Section 36.24 of the Revised Ordinances directs that if any article, section, paragraph, clause or provision of the zoning ordinance shall be adjudged invalid, such adjudication shall apply only to the article, section, paragraph, clause or provision so adjudged, and the rest of the ordinance shall remain valid and effective.
Plaintiffs inform us that their action is limited to setting aside the concluding sentence of the definition of "launderette," dealing with the prohibition of pickup and delivery.
The municipal power to zone derives from the Zoning Act, N.J.S.A. 40:55-30 et seq. , enacted pursuant to Const. 1947, Art. IV, sec. VI, par. 2. N.J.S.A. 40:55-30 provides:
"Any municipality may by ordinance, limit and restrict to specified districts and may regulate therein, buildings and structures according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, * * *.
The authority conferred by this article shall include the right to regulate and restrict the height, number of stories, and sizes of buildings, and other structures, the percentage of lot that may be occupied, the sizes of yards, courts, and other open spaces, the density of population, and the location and use and extent of use of ...