On certified appeal from the Law Division to the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J.
The issue here concerns the legal sufficiency of an amendment to the Township of Livingston's zoning ordinance adopted May 31, 1955, excluding from a Business district 27 enumerated "buildings and uses," "storage garages" among them, but permitting "private and public garages" in all such districts. The preexisting regulations did not forbid "storage garages" in a Business zone. The amendment also increased from seven to nine feet, in relation to the district boundary line, the side-yard requirement of a building erected on a lot in a Business district adjoining a lot in a Residence district, although the parallel restriction on the adjoining lot in the Residence zone remained unchanged. The provision of off-street parking facilities was made obligatory for new buildings to be devoted to business or "non-dwelling" use. And it was also provided, this for the first time, that every building erected in a Business district, designed or intended to be used for a permissible "business purpose," shall "face or front upon a main street," designated for "the purpose of this ordinance" as Livingston Avenue, McClellan Avenue, Mt. Pleasant Avenue, Northfield Road, South Orange Avenue, and State Highway Route No. 10, but not Franklin Avenue.
On April 4, 1955 plaintiffs applied to the local building inspector for a permit to construct of masonry a one-story building, 37 feet x 70 feet, on a lot 45 feet wide situate in a Business zone, designed to house "four or five" trucks used by some of the plaintiffs in the pursuit of a garbage-disposal business. The lot is part of an L-shaped plot owned by plaintiffs fronting 105.40 feet on the northeasterly side of McClellan Avenue and extending back a depth of 269.20 feet along the southeasterly side of McCall Avenue, and thence in a southeasterly direction to Franklin Avenue and along
the northeasterly side of Franklin Avenue 136.62 feet to lands of one Luciano on the northeast corner of the McClellan Avenue intersection. The lot in question adjoins the Luciano property on the east; the remainder of plaintiffs' Franklin Avenue frontage is zoned for Residence use; the 45-foot lot extends northwestwardly from Franklin Avenue for a depth of 200 feet to the southeasterly line of the parallel McCall Avenue, and all of plaintiffs' plot extending in a westerly direction from the 45-foot lot, a distance of 120 feet to McClellan Avenue, lies in the same Business district. The plan submitted by plaintiffs shows that the proposed structure would front, not on Franklin Avenue, but on a 30-foot private driveway on their own plot running west along the Luciano lands to McClellan Avenue, in the area classified for Business use. The rear of the building is to be set back 25 feet from the property line and 50 feet from the center line of Franklin Avenue, a requirement of the zoning ordinance; and there will be a side yard of at least seven feet between the building and the zone boundary line. The rear of the building will have no doorway affording access to Franklin Avenue.
The application for the building permit was submitted to the local planning board at a session held April 12, 1955, but no action was taken other than to ask for the advice of the township solicitor. Plaintiffs' counsel urged prompt action. The ordinance creating the planning board, adopted June 21, 1954 under L. 1953, c. 433, N.J.S.A. 40:55-1.14, provided for the submission to that agency, for hearing, consideration and recommendatory action within 45 days, of all applications for permission to build in a Business zone. An earlier application had been denied, and the denial was sustained on judicial review as a proposal not conforming to the side-yard requirements of the ordinance. But on April 26 ensuing the planning board considered, and on May 24 approved, a plan to amend the zoning ordinance as provided in the amendment adopted May 31, 1955, introduced May 16, now under review. Neither the building inspector nor the planning board notified plaintiffs of any action taken
on the application. This proceeding in lieu of mandamus to compel the issuance of the building permit was begun May 9, 1955.
Judge Ewart found that the "proposed building is a 'storage garage' within the definition of the amended ordinance" and the exclusion of such use from Business zones constituted an arbitrary and unreasonable exercise of the zoning function, and so the regulation in this regard was ultra vires and void; and, since the application otherwise conformed to local law, there was judgment commanding the issuance of a building permit accordingly. 37 N.J. Super. 507 (Law Div. 1955).
The defendant building inspector's appeal to the Appellate Division of the Superior Court was certified here for decision on our own motion.
The contrary insistence is that the regulation is well within the considerations of public "health and welfare" sustaining police action. The "private and public garages" permissible in all Business districts are defined thus: Private garage: "An attached or detached building or part thereof, used as an accessory to a main building or dwelling, with a capacity for the storage of not more than three motor vehicles and in which no occupation or business for profit is carried on." Public garage: "Any premises, except those described as a private garage or storage garage available to the public for the storage, care or repair of motor vehicles." The excluded "storage" garage is differentiated in these terms: "Any premises, except those described as a private garage or public garage, used exclusively for the storage of motor vehicles."
The argument for this seemingly incongruous and unreal classification is this: Livingston is a "suburban municipality" 14 square miles in area, "primarily" a "residential community of one-family dwellings." Since the adoption of the original zoning ordinance on January 31, 1929, "only single-family dwellings have been permitted in its Residence districts." The federal ...