On certified appeal to the Appellate Division from the Law Division of the Superior Court.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Wachenfeld and Burling. For affirmance -- Justices Oliphant, Jacobs and Brennan. The opinion of the court was delivered by Heher, J. William J. Brennan, Jr., J. (dissenting). This dissent is joined in by Mr. Justice Jacobs.
[20 NJ Page 118] At issue here is the legal sufficiency of an amendment to the zoning ordinance of the Borough of New Providence providing that "No lands or structures shall be used, nor shall any structures be erected, altered or used within the Industrial Zone" delineated by the ordinance "for any residential, or retail commercial purpose," and "Only industrial uses which are not detrimental to health, safety or property shall be permitted, and in no event" shall
leave be given to conduct storage yards for oil, coal, lumber, junk, certain "noxious and deleterious manufacturing," or "Any other use or purpose which in the opinion of the Mayor and Borough Council is detrimental to health, safety, or property, or to property values."
The proceeding is in lieu of mandamus to compel the issuance of a building permit for the construction in the industrial zone of nine retail commercial stores, to constitute a "shopping center." Plaintiffs' plot comprises 5.14 acres fronting 425 feet on Central Avenue and extending back a depth of 537 feet, the whole being within the industrial zone. The individual plaintiff, Thompson, acquired the land by deed dated June 25, 1953, recorded the ensuing September 14. He is the principal stockholder of the plaintiff corporation, which seems to be a family enterprise. The formal application for the building permit was made October 19, 1954. The building inspector deferred action pending submission of the plans and specifications for the project to the mayor and council. But negotiations began the prior April for the construction on the land of a "small shopping center consisting of nine to eleven stores in one continuous front." Then came the introduction, September 27, 1954, of the later-adopted supplement to the zoning ordinance now under attack. On October 25 the application for a building permit was renewed before the council and was "tabled until after hearing on the ordinance revising rules and regulations of the Industrial Zone is held on November 8, 1954." Upon the adoption of the supplement, the building inspector advised plaintiffs by letter dated November 15 that the proposed use "is forbidden by the Zoning Ordinance, as amended." Thereupon the complaint in this proceeding, filed the prior November 3, was amended to allege that the supplement to the ordinance is unreasonable, arbitrary and capricious and deprives plaintiffs of their property without due process of law, and, moreover, it was "enacted contrary to the statute and is null and void."
There was summary judgment for defendants on a stipulation of facts and affidavits; and the case is here by certification
on our own motion of plaintiffs' pending appeal to the Appellate Division of the Superior Court.
The plaintiff Thompson acquired the lands in the Fall of 1953; and the following April, as just said, he submitted to the local planning board and the governing body plans and specifications for the project, for such action as was required under local ordinances. The parties are in controversy as to whether the proposed use was permissible under the zoning ordinance as it then was. But certain it is that the amendment of the ordinance was undertaken to bar the use proposed by plaintiffs; the denial of the building permit was based upon the "Zoning Ordinance, as amended," forbidding the "erection of a building for retail stores, which is a retail commercial use." The ban comes by the 1954 amendment; the use was not forbidden by the prior law; and the crucial inquiry concerns the legal sufficiency of the 1954 amendment.
The original ordinance of 1933 divided the borough into five zones or districts, for these use limitations: "A," one-family dwellings; "B," the use permissible in "A" and two-family dwellings "or housekeeping units"; "C," the use allowable in "A" plus "Laboratories devoted to research, design and/or experimentation, and fabrication incidental thereto"; and "D," the uses permitted in "A," "B," or "C" zones "and without limitation as to public, gainful or profitable purpose," and "Any lawful, residential, social, professional, educational, recreational, amusement, athletic, charitable, religious, commercial or business use except slaughtering of animals," and "Manufacturing, processing, producing or fabricating operations which ordinarily are not productive of injurious or offense (sic) noise, fumes, * * *."
An amended ordinance effective May 28, 1951 incorporated "portions of the 'B-1' zone and 'D' zone," therein described by metes and bounds, into an "industrial zone," and authorized any and all uses therein save (1) "Residential purposes," (2) "Storage yards for oil, coal, lumber, junk," certain "noxious and deleterious manufacturing," and "Any other use or purpose which is noxious or injurious to health,
safety or property." And then came the amendment of 1954, permitting in the "Industrial Zone" "Only industrial uses which are not detrimental to health, safety or property," and specifically excluding residential, retail commercial, and the other uses to which reference has been made. Thus, the new zone is restricted to what has come to be known as "light industrial" uses.
Plaintiffs' lands are situate in the southwesterly quarter of the borough, near the Murray Hill station of the Delaware, Lackawanna & Western Railroad's line running from Gladstone, Bernardsville and Summit to New York City, in an area having several wholesale commercial greenhouses and connected boiler plants. The plot abuts on the south the zone in which business is a permissible use. Central Avenue is one of the borough's main thoroughfares, running generally east to west; the particular plot is just west of South Street, also a main highway. In the immediate vicinity are located the Bell Laboratories, the Air Reduction Laboratories, and an office building of the All-State Insurance Company; and the construction of an office building for the American Mineral Spirits Company and a 172-suite garden apartment structure are in prospect. Due north is the plant and office building of a manufacturer of diamond drills and mining equipment; northwest a factory of the Garden Mower Company, a subsidiary of U.S. Hammered Piston Ring Company, is under construction; due west, contiguous to the plaintiffs' lands, are three separate greenhouses and the boiler rooms, heating plants and smokestacks of wholesale florists and flower growers, and to the southwest there is another such plant. Due south is a business area and 11 multiple-family dwellings and stores and outbuildings of the Baldwin Company, dealers in fuel, oil, coal and building materials and supplies, and retail hardware. Bordering the Baldwin property, and along the railroad, are a freight station and public and private track sidings, and to the south of the tracks are the railroad station, the federal postoffice, two coal pockets, one privately owned and the other the railroad's. Due east of plaintiffs' lands is an office building of the New
York Life Insurance Company, used also for the filing and storing of records and archives, and to the southeast are commercial greenhouses and boiler rooms.
On June 2, 1954 the clerk of the planning board advised the plaintiff Thompson, by letter, that at a meeting of the board held the day before Thompson's letter of May 12 "and prior application were discussed," and he, the clerk, "was directed to request the following from you: that plans show a street running from Central Avenue to Floral Avenue, same to be constructed at no cost to the Borough; that market be shown facing this street; an affidavit from people who will lease the stores stating they plan to lease; that there will be sufficient parking area to the rear of the stores and no parking for at least 75 feet from Central Avenue; that sewer line and other necessary utilities will be installed at no cost to the Borough." But Thompson was cautioned that "compliance with these requests in no way indicates that your plans will be approved."
Use restrictions upon real property must find their justification in some aspect of the police power, reasonably exerted for the public welfare. The police function cannot be expressed in terms of a definitive formula that will automatically resolve every case, for its quality and scope are commensurate with the public exigencies arising from everchanging social and economic conditions. But it is basic to zoning, as with every exercise of the police power, that it be contained by the rule of reason; constitutional due process and equal protection ordain that the exertion of the authority shall not go beyond the public need; there cannot be unnecessary and excessive restrictions upon the use of private property or the pursuit of useful activities; a substantial intrusion upon the right infringes essential individual liberties immune to legislative interference. The restrictions may be so unreasonable as to be confiscatory, and the regulation then transgresses the organic law as arbitrary and oppressive. Brandon v. Board of Com'rs of Town of Montclair, 124 N.J.L. 135 (Sup. Ct. 1940), affirmed 125 N.J.L. 367 (E. & A. 1940).
The police power is the public right to reasonable regulation for the common good and welfare. The constitutional principles of due process and equal protection demand that the exercise of the power be devoid of unreason and arbitrariness, and the means selected for the fulfillment of the policy bear a real and substantial relation to that end. In a word, the authority coincides with the essential public need. And in zoning there must be a rational relation between the regulation and the service of the general welfare in an area of action within the range of the police power. Excesses in the realization of the statutory considerations are inadmissible. Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405 (1952).
It is fundamental in zoning policy that all property in like circumstances be treated alike. The use restraints must be general and uniform in the particular district. Beirn v. Morris, 14 N.J. 529 (1954). The essence of zoning is territorial division in keeping with the character of the lands and structures and their peculiar suitability for particular uses, and uniformity of use within the division. The genius of the constitutional and statutory zoning process is the regulation of land and buildings by districts according to the nature and extent of their use; and it goes without saying that arbitrary deviation from the general rule is forbidden, on constitutional principle as well as the policy of the statute. Undue discrimination in treatment and classification vitiates the regulation. Schmidt v. Board of Adjustment, supra; Collins v. Board of Adjustment of Margate City, 3 N.J. 200 (1949). The constitutional uniformity and equality requires that classification rest on real and not feigned differences, such as make for a distinction having some relevance to the purpose for which the classification is made, i.e., zoning by districts "in accordance with a comprehensive plan" that ...