Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
Plaintiff appeals from a judgment for the defendant entered in an action in lieu of prerogative writ.
Plaintiff had made application to the defendant's board of adjustment pursuant to section 8D of defendant's zoning ordinance, seeking permission to install and operate machinery for the crushing and screening of quarry rock on certain land in Montville owned by the plaintiff. The board, after a hearing, recommended to the township committee that the permission sought be granted, though it attached to its recommendations ten conditions for the protection of the public interest. Plaintiff has accepted the conditions.
The matter then came before the township committee which, after a hearing, disapproved the board's recommendations by a vote of two to one. The committee did not state its reasons, though plaintiff specially requested it to do so. Thereupon plaintiff brought this action in lieu of prerogative writ to have the court set aside the committee's determination.
It might be noted, in passing, that the board of adjustment found that plaintiff in 1954 was operating a quarry and a sand and gravel pit on its premises, as nonconforming uses. But no attempt is made before us to sustain that finding or to establish nonconforming uses protected by N.J.S.A. 40:55-48; and hence we do not deal with the matter. It might be observed further that the township committee seems to have passed only upon plaintiff's application to the board for permission to erect and operate the proposed machinery -- and not to have made any decision as to whether the plaintiff may operate the quarry, excavate rock or undertake any blasting, or whether it may work the sand and gravel pit.
The fundamental question in the case is whether the committee acted arbitrarily.
We are concerned with section 8D of Montville's zoning ordinance, reading as follows:
"D. Sand, Clay and Gravel Pits and Stone Quarries
1. Sand, clay, gravel and stone or other natural mineral deposit or rock formations may be excavated, used and sold for commercial purposes in any District, provided the Board of Adjustment with the approval of the Township Committee after investigating, finds the project warranted, and grants a temporary permit subject to such restrictions as the Board of Adjustment shall deem necessary for the welfare of the Township.
2. The Board of Adjustment may refuse approval of crushing and screening operations or attach to its approval such requirements as it may consider necessary for the protection of the neighborhood and the public interests" (Italics added.)
The parties agree that the standards stated in section 9(1) of the ordinance (taken largely from N.J.S.A. 40:55-32) are to determine whether or not the project is "warranted" under section 8D.
Neither party mentions the point, but both parties seem to construe paragraph 2 of section 8D as authorizing crushing and screening operations only in case approval is secured not only from the board of adjustment but also from the township committee; and we will adopt this construction. Furthermore, it is to be noted that ...