provisions concerning municipal corporations formed for local government.
The landmark case involving the constitutionality of a zoning ordinance is probably that of Village of Euclid, Ohio v. Ambler Realty Co., 1926, 272 U.S. 365, 395, 47 S. Ct. 114, 121, 71 L.Ed 303, where the Court stated that
'it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.'
And 272 U.S. on page 388, 47 S. Ct. on page 118, the Court maintained that
'If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.'
The plaintiff's assertion that the lot of land he purchased is a virtually inaccessible peak area, totally unfit for residential purposes itself or in its immediate vicinity, was sharply contested by the defendants. His proofs that this spot and this alone would meet the conditions of height to make possible the continuance and expansion of his business were not convincing. Indeed, the very permit of the Federal Communications Commission, so heavily relied upon by him as an order, carries with it the implication of uncertainty that there will be a permanent grant of federal authority to him. Plaintiff's lot, though irregular and difficult of approach now, could be made the site of a substantial residence present an owner possessing the desire for it and the money required to be expended upon it. Homes are located in the relatively close vicinity of the lot.
There is an initial presumption of the validity of a zoning ordinance, Brandon v. Board of Com'rs of Town of Montclair, 1940, 124 N.J.L. 135, 149, 11 A.2d 304, affirmed, 1940, 125 N.J.L. 367, 15 A.2d 598, which can be controverted by sufficient evidence to the contrary. No such sufficiency of evidence to the contrary has been presented. On the other hand, there was evidence, as has been previously intimated, that the municipality had attempted to plan for its future growth according to modern expert teaching. Surveys had been made of the then present uses to which property in the municipality and its contiguous territory was being put and projections on as scientific a basis as possible were made as to the most advantageous division of the areas for future growth having in mind the common good of the entire community.
In the absence of a showing that a zoning ordinance is clearly arbitrary and unreasonable, and in contravention of the due process and equal protection clauses of the United States Constitution, there is a growing and justified reluctance by the courts to substitute their judgment for that of the legislative body of the municipality. Standard Oil Co. v. City of Tallahassee, Fla., D.C.N.D.Fla. 1949, 87 F.Supp. 145, affirmed, 5 Cir., 1950, 183 F.2d 410; Downham v. City Council of Alexandria, D.C.E.D.Va.1932, 58 F.2d 784, 788.
In Ward v. Scott, 1954, 16 N.J. 16, 22, 105 A.2d 851, 855, the New Jersey Supreme Court refers to a number of cases
as indicative of the recent trend of the courts to hold
'* * * that municipal governing bodies may exercise broad powers in their zoning regulation of land and structures * * * (and) are in furtherance of constitutional and statutory objectives and the public welfare generally.'
Where possible, in the interests of comity, this court will not contradict state policy.
Plaintiff refers to Hasbrouck Heights Hospital Ass'n v. Borough of Hasbrouck Heights, 1953, 27 N.J.Super. 476, 99 A.2d 591, reversed on other grounds in 1954, 15 N.J. 447, 105 A.2d 521 and Collins v. Board of Adjustment of Margate City, 1949, 3 N.J. 200, 69 A.2d 708, as supporting his case, but the language of those decisions leads to inferences otherwise. In fact, the court in the Hasbrouck Heights case, supra, 27 N.J.Super. at page 480, 99 A.2d at page 593 quotes from Monmouth Lumber Co. v. Ocean Township, 1952, 9 N.J. 64, 74, 87 A.2d 9,
"* * * an exercise of the police power by a legislative body is not rendered unconstitutional merely by the fact that its enforcement works curtailment of private activity, even to the point of prohibition thereof."
It might not be amiss, at this juncture, to emphasize that this court is not discussing whether the zoning ordinance might, in effect, create an undue hardship on plaintiff's use of his property, but only whether the ordinance, in its general terms and general application, is unconstitutional. As stated by the New Jersey Supreme Court in Fischer v. Township of Bedminster, 1952, 11 N.J. 194, 206, 93 A.2d 378, 384:
'* * * the validity of a zoning ordinance is not to be determined by reference to a single individual property. If the plaintiff is dissatisfied with the application of the zoning laws to his particular property, he may apply to the board of adjustment for a variance * * *.'
This, of course, is an administrative remedy, which plaintiff here was not seeking -- and so is not inconsistent with the prior conclusion that plaintiff was not barred from this suit by failure to exhaust administrative remedies. The zoning ordinance would be void, of course, if the township had failed to provide for a board of adjustment as required by N.J.S.A. 40:55-36, but no such infirmity here exists. See Somers v. Borough of Bradley Beach, Ct.Err. & App.1935, 115 N.J.L. 135, 178 A. 755.
The plaintiff must therefore be denied the relief he seeks and judgment must be entered in favor of the defendants.
This opinion shall constitute findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C. and an order in conformity herewith shall be settled on the next motion day, January 7, 1957, unless sooner submitted by consent as to form reserving objections for appeal.