Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
Plaintiffs, residents of the Borough of Maywood, instituted this action before the Superior Court, Law Division, for the purpose of having an amendment to the borough's zoning ordinance set aside. Judge Leyden, for the Law Division, sustained the amendment, and plaintiffs bring this appeal. The underlying question is whether the amendment is so manifestly neglectful of the general welfare of Maywood that the courts should strike it down.
The amendment rezones a strip of land, 270 feet wide, extending between two parallel lines, namely, Spring Valley Avenue in Maywood and the northerly line of Maywood which separates Maywood from Paramus. This strip, comprising 16 1/2 acres, extends along most of the northern boundary of this small community. Prior to the amendment it was part of a "B" district, in which one- and two-family dwellings, farming, gardening and horticulture were permitted; however the amendment, designating the area a "D-X" district, authorizes office buildings and off-street parking facilities, in addition to one- and two-family dwellings.
In 1932, while the northern part of Maywood and adjacent areas in Paramus were still largely rural, the State opened up Route 4 through Paramus, a short distance north of Maywood's northerly line. It has become a heavily traveled artery, and under Paramus' first zoning ordinance adopted in 1946, that part of Paramus, which adjoins the 16 1/2 acres, was zoned in part for industry and in part for business. On the other hand Maywood has grown up as a residential
community for some five (or nine, depending on how one counts them) blocks on the north end of the borough -- right up to the south side of the 16 1/2 acres -- and for a couple of blocks on the east side thereof. Despite these developments, the 16 1/2 acres remained an open strip of land, used largely for farming until perhaps 1950, and owned (along with some of the adjoining land in Paramus) by two persons for years. One of these owners would not sell. But why, we do not know. In 1950 most of the 16 1/2 acres was subdivided for the purposes of development, and two houses were put up and 35% completed.
Then in 1951 the greater part of the 16 1/2 acres, and in that year or some time thereafter, 90 acres in Paramus on the south side of Route 4, were bought up by the interests which control the intervening defendants, Bergen Mall and May-Par Garden Center, with a view to erecting thereon a huge shopping center. Incidentally, the two houses above referred to were leveled. The intervenors originally planned to erect upon the 16 1/2 acres some of the buildings making up the center, but when it was determined that this could not be done (whether or not the borough council refused to accept that plan, does not appear), the entire project was then moved 80 feet to the north. In 1954 the borough council, by formal resolution, rejected what appeared to be other proposals of Bergen Mall for the use of the area in question. However, a year later -- when the issuance of building permits by Paramus turned the shopping center into an inevitable reality, from which the Borough Council of Maywood found no escape -- the amendment before us was introduced and adopted. The passage of the ordinance was the product of comprehensive findings on the part of the Maywood Planning Board, a through study by the police department as to traffic problems, and public meetings before the borough council. The problem had been publicly aired in the borough for a considerable period of time.
Plaintiffs' argument essentially is founded upon the constitutional guaranties of due process and equal protection (Brandon v. Montclair , 124 N.J.L. 135, 142 (Sup. Ct.
1940), affirmed 125 N.J.L. 367 (E. & A. 1940); Raskin v. Morristown , 21 N.J. 180, 194 (1956)) and upon the statute demanding compliance with a comprehensive plan. N.J.S.A. 40:55-32. In the application of these dictates there is no escape from the imprecision of a general standard. Professor Haar in a much cited article holds out hope for relief in this matter if the Legislature would only require zoning amendments to conform to a formally adopted master plan. But under such a proposal a zoning change would merely be obliged to pass through two stages, an amendment first of the plan and second of the ordinance; and however salutary such legislation might be in other respects, the courts would find themselves still working with the old standard, applying it against the first stage of the process. Haar, "In Accordance with a Comprehensive Plan," 68 Harv. L. Rev. 1154 (1955).
The standard that governs the courts is simply this: the municipality must reasonably, conscientiously and without arbitrary discrimination provide for the interests of the community now and in the foreseeable future. But there is another important factor to be added to the standard. The devising of a zoning amendment is not judicial business; we are not asked to sit in with the governing body. Nor are we entrusted with a broad superintendency over the matter. We may interpose our judicial authority only where there is an abuse of this standard that is manifest (Ward v. Scott , 16 N.J. 16, 23 (1954); Nectow v. Cambridge , 277 U.S. 183, 187, 48 S. Ct. 447, 82 L. Ed. 842, 844 (1928)) -- that is, only where there is clearly unreasonable action or other more untoward conduct. Except in such a case, the court's attitude must be one of withdrawal, and not of intrusion. Indeed there is some evidence of a tendency in the last ten years to enlarge the area of authority confided to local governing bodies, and thus incidentally, to contract that left open for the abrogation of the local act through a judicial edict. See, for example, Art. IV, Sec. VII, par. 11 of the 1947 Constitution; N.J.S.A. 40:69 A -28 to 30, the powers of municipalities adopting the Optional Charter
Law; N.J.S.A. 40:55-39(d), the broad standard applicable since 1953 to ...