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Kozesnik v. Township of Montgomery

Decided: April 8, 1957.

FRANCIS J. KOZESNIK AND LAWRENCE E. BENSON, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF MONTGOMERY AND MINNESOTA MINING AND MANUFACTURING COMPANY, DEFENDANTS-RESPONDENTS. CHARLES F. SLOVER AND NANETTE T. SLOVER, PLAINTIFFS-APPELLANTS, V. TOWNSHIP OF MONTGOMERY AND MINNESOTA MINING AND MANUFACTURING COMPANY, DEFENDANTS-RESPONDENTS. JAMES A. DEPEW, MADELINE H. DEPEW, CHARLES L. FONTANA, JANE L. FONTANA, WALTER H. TAVENER, ELIZABETH A. TAVENER, JOSEPH A. LYNCH, ELSIE A. LYNCH, HENRY W. PETERS, HELEN R. PETERS, VINCENT J. PASCUCCI, MURIEL G. PASCUCCI, CHARLES F. SLOVER AND NANETTE T. SLOVER, PLAINTIFFS-APPELLANTS, V. TOWNSHIP OF HILLSBOROUGH, A MUNICIPAL CORPORATION; RICHARD VAN DOREN, DAVID W. AMERMAN AND RICHARD MUSA, MEMBERS OF THE TOWNSHIP COMMITTEE; MINNESOTA MINING AND MANUFACTURING COMPANY; HENRY JOHANSON, BUILDING INSPECTOR; AND A. Y. TAYLOR, ZONING OFFICER, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division.

For reversal -- Justices Heher, Wachenfeld, Burling, Jacobs and Weintraub. For affirmance -- None. The opinion of the court was delivered by Weintraub, J. Heher, J. (concurring). Heher, J., concurring in result.

Weintraub

Plaintiffs challenge the validity of amendments to the zoning ordinances of the Township of Hillsborough and the Township of Montgomery. The trial court upheld the measures. On our own motion we certified appeals prosecuted to the Appellate Division.

Early in 1953 Minnesota Mining and Manufacturing Company (herein called 3M) informed the townships of the existence of diabase rock of unusual quality in the Sourland Mountain, and asked for amendments of their respective ordinances to the end that it might quarry and process the rock for ultimate use as colored roofing granules. 3M proposed that a quarry and crushing plant be located in Hillsborough and the coloring plant in Montgomery, the granules to be carried from Hillsborough to the coloring plant in Montgomery by a conveyor system. The total operation would thus involve an integration of activities in the two townships.

Sourland Mountain is a prominent geographic feature of the townships. At the time of 3M's application, the areas here involved were zoned for agricultural or residential uses. The mountain has not lent itself to agricultural development and is much too rugged for exploitation for mass residential development, but is attractive for isolated custom home construction and some homes have been located in the mountain, although not within the zones ultimately established in response to 3M's application. There has been no utilization of the lands in the new zones within recent years.

Both townships are sparsely inhabited. In Hillsborough, which covers 54.7 square miles, the population in 1950 was 3,875 and in 1953 was 4,594. A portion of the township was set aside for industrial development, but failed to attract industry. The actual utilization of land consists, in addition to homes, of some commercial uses to meet local needs and some large governmental installations. Montgomery covers 31.8 square miles and its population totalled 3,819 in 1950 and 3,900 in 1954. Prior to the amendment in question its lands were zoned either for residential or business use.

Most of the land is used for farming. There were but 620 houses in the township in February 1954. The New Jersey Neuro-Psychiatric Institute at Skillman (which houses about 1,500 of the total population), a fertilizer packaging plant, a private sanatorium, a farm implement agency and a store, complete the story of land utilization in the township. There are no municipal services other than road construction and maintenance and police protection.

3M's decision to quarry in Hillsborough was dictated by the special quality of the diabase rock there found, the amount of overburden which would have to be removed, and the presence of an appropriate facing for quarrying which would obviate the more difficult and expensive pittype operation. Montgomery was preferred as the site for the coloring plant because of easier access to existing railroad facilities. It was contemplated that about 90% of the granules would move by rail and the balance by truck.

3M's application excited great local interest. After extensive public debate, both townships made the legislative decision to rezone in harmony with 3M's request in December 1953. A complaint in lieu of prerogative writ was filed against each municipality. The Montgomery suit resulted in the judgment here under review. Prior to trial, Hillsborough repealed its amendatory ordinance pursuant to what was accepted as a verdict at the polls, and the action against it was accordingly dismissed. On February 24, 1955, again after a local election, the ordinance was reenacted and there followed the Hillsborough litigation now before us.

Although for reasons hereinafter expressed we feel compelled to set aside the amendatory ordinances of both townships, we are satisfied that the basic plan may lawfully be achieved. Our purpose here is to consider those objections, valid and invalid, which will bear upon the course the municipalities may take if they should determine to further the program.

There of course is nothing invidious in the circumstance that the townships cooperated in a matter of common

interest. On the contrary, municipalities are concerned with land utilizations abutting their lines, and hence a concurrent effort to integrate them serves the objective of our zoning statute. Borough of Cresskill v. Borough of Dumont, 15 N.J. 238 (1954); Duffcon Concrete Products, Inc., v. Borough of Cresskill, 1 N.J. 509 (1949); Basselt, Zoning (1940), p. 92.

THE HILLSBOROUGH ORDINANCE

Hillsborough amended its ordinance to create a limited industrial zone wherein it authorized residential and agricultural uses as theretofore and additionally permitted "Quarries." The ordinance conditions the right to quarry upon the issuance of a permit by the township committee upon an application to be referred to the planning board for review and report thereon. Standards are prescribed of which the following may be noted:

(1) No quarry shall be conducted on less than 200 contiguous acres within the zone.

(2) Both a quarry and a processing plant shall not be conducted on less than 400 contiguous acres within the zone.

(3) No part of any of the use, except a railroad spur and approved access roads, shall be (a) within 100 feet from a boundary of the zone, or (b) within 400 feet from the nearest right-of-way "of any public road or highway now maintained by public authority," or within 400 feet "from any dwelling existing at the introduction of this Ordinance."

(4) No quarry excavating shall be done within 500 feet "from any such zone boundary or right-of-way line," nor within 1,000 feet "from any such dwelling," provided that the distance limitation with respect to any such zone boundary shall not apply if the boundary is contiguous to a boundary of a zone in which quarrying or processing of quarry products or both is permitted in an adjoining municipality.

Further provisions with appropriate standards give added assurance of safe operation.

The ordinance provides that "No quarry shall be permitted whose primary use of the product extracted shall be the sale of the extracted product in an unprocessed state for

road building or the manufacture of concrete." This restriction is intended to confine quarrying to rock having sufficient value to bear the cost of the protective measures required under the ordinance to safeguard the public interest and apparently as well to preclude general quarrying which would lead to substantial trucking operations through the community to meet relatively local demands. In short, the ordinance is so framed that for all practical purposes the industrial activity authorized is pinpointed to the extraction and processing of diabase rock for limited ultimate use.

Various challenges are bottomed upon R.S. 40:55-32, which reads:

"Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality."

I.

Plaintiffs contend the amendment is not "in accordance with a comprehensive plan." There are a number of facets to this attack. The first is that there can be no comprehensive plan unless it is evidenced in writing dehors the zoning ordinance itself.

Hillsborough has not adopted a master plan under the Planning Act, R.S. 40:55-1 et seq., superseded on January 1, 1954, by the Municipal Planning Act (1953), chapter 433 of the Laws of 1953, N.J.S.A. 40:55-1.1 et seq.

The former Planning Act authorized but did not require the creation of a planning board and the adoption of a

master plan. R.S. 40:55-3 and 6. The present Planning Act repeats this permissive approach. N.J.S.A. 40:55-1.4 and 1.10. Neither the former nor the present act provides that a master plan shall precede the adoption or amendment of a zoning ordinance. On the contrary, the Zoning Act initially provided for the formation of a zoning commission to recommend a zoning ordinance, R.S. 40:55-33, and expressly stated that an amendment of the ordinance was beyond even that provision. An amendment of that section in 1948 provides the planning board may be used instead of a zoning commission, and the same amendatory statute provides an amendment of a zoning ordinance shall not become effective unless the ordinance proposing it shall first have been submitted to the planning board. R.S. 40:55-35, as amended. But the statutes do not say that a master plan is prerequisite to zoning action.

No doubt good housekeeping would be served if a zoning ordinance followed and implemented a master plan, Haar, "In Accordance with a Comprehensive Plan," 68 Harv. L. Rev. 1154 (1955), but the history of the subject dictated another course. Initially regulations concerning land use were merely prohibitory or restrictive with respect to specific noxious or dangerous activities. Thereafter a more comprehensive approach developed in the form of zoning, having as its purpose the creation of districts with regulations as to construction and use, including regulations as to height, number of stories, sizes of buildings, percentage of lot that may be occupied, sizes of yards, courts, etc. R.S. 40:55-30. Finally came the Planning Act, which envisions the development of a plan looking to and guiding future development with provision for the location of public improvements, control over subdivisions, and the like. For a discussion of the relation of zoning to planning see Mansfield & Swett, Inc., v. Town of West Orange, 120 N.J.L. 145 (Sup. Ct. 1938).

Thus the historical development did not square with the orderly treatment of the problem which present wisdom would recommend. And doubtless the need for immediate

measures led the Legislature to conclude that zoning shall not await the development of a master plan. Accordingly, as of October 15, 1954, while there were 371 zoning ordinances in our State, there were 320 planning boards and but 112 master plans. Professor Haar states that for the most part zoning elsewhere has preceded planning and about one-half of the cities with comprehensive zoning ordinances have not adopted master plans. Haar, "In Accordance with a Comprehensive Plan," supra (68 Harv. L. Rev., at 1157).

It is thus clear that the "comprehensive plan" of the zoning statute is not identical with the "master plan" of the Planning Act and need not meet the formal requirements of a master plan. The Zoning Act nowhere provides that the comprehensive plan shall exist in some physical form outside the ordinance itself. The question therefore is whether that requirement inheres in the very nature of a "comprehensive plan."

There has been little judicial consideration of the precise attributes of a comprehensive plan. Haar, "In Accordance with a Comprehensive Plan," supra (68 Harv. L. Rev. 1154). Our own decisions emphasize that its office is to prevent a capricious exercise of the legislative power resulting in haphazard or piecemeal zoning. Speakman v. Mayor and Council of Borough of North Plainfield, 8 N.J. 250, 256 (1951); Raskin v. Town of Morristown, 21 N.J. 180, 198 (1956). Without venturing an exact definition, it may be said for present purposes that "plan" connotes an integrated product of a rational process and "comprehensive" requires something beyond a piecemeal approach, both to be revealed by the ordinance considered in relation to the physical facts and the purposes authorized by R.S. 40:55-32. Such being the requirements of a comprehensive plan, no reason is perceived why we should infer the Legislature intended by necessary implication that the comprehensive plan be portrayed in some physical form outside the ordinance itself. A plan may readily be revealed in an end-product -- here the zoning ordinance -- and no more is required by the statute.

The comprehensive plan embraced by an original zoning ordinance is of course mutable. If events should prove that the plan did not fully or correctly meet or anticipate the needs of the total community, amendments may be made, Hochberg v. Borough of Freehold, 40 N.J. Super. 276 (App. Div. 1956), and if the ordinance as thus amended reveals a comprehensive plan, it is of no moment that the new plan so revealed differs from the original one.

II.

It is asserted the authorization to quarry and process rock is incompatible with the purposes set forth in R.S. 40:55-32, and hence not part of a "comprehensive plan."

The zoning statute delegates legislative power to local government. The judiciary of course cannot exercise that power directly, nor indirectly by measuring the policy determination by a judge's private view. The wisdom of legislative action is reviewable only at the polls. The judicial role is tightly circumscribed. We may act only if the presumption in favor of the ordinance is overcome by a clear showing that it is arbitrary or unreasonable. Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405, 416 (1952); Cobble Close Farm v. Board of Adjustment of Middletown Tp., 10 N.J. 442, 451 (1952); Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 360 (1953); Pierro v. Baxendale, 20 N.J. 17 (1955).

Nothing in the zoning statute intimates that natural resources may not be tapped. The power to authorize quarrying and processing of rock must surely exist, and the Planning Act of 1953 lists "mining" and "other like matters" within the scope of proposals for a master plan. N.J.S.A. 40:55-1.11. Hence the issue is whether Hillsborough's determination that its welfare would be advanced by the action it took must be condemned on the standard which controls judicial review.

There assuredly are considerations pro and con. On the plus side are the economic gains to the municipality consequent

upon the industrial activity, including substantial tax revenues in an area which has had a fairly high incidence of tax delinquency; the benefit to the vicinity, State and eastern part of our Nation from access to the natural resource; the circumstance that the property is peculiarly suitable for the particular use and that the amendment authorizes the most appropriate use of the lands involved, a purpose which the statute encourages so long as it is not incompatible with total local welfare.

On the minus side appear a number of considerations, the evaluation of which is sharply disputed. The statute commands that the regulations be made "with a view of conserving the value of property and encouraging the most appropriate use of land throughout" the municipality. The record well supports a finding that by reason of the rural nature of the community and the remoteness of the site, the impact upon property values in other districts will be slight. There will be some increase in traffic, as of course inevitably follows any utilization of land, but the increase will be moderate. There will be no appreciable hazard from fire or panic, or overcrowding of land or buildings, or undue concentration of population. There inheres in quarrying an element of annoyance from sound and concussion, but state legislation and provisions of the ordinance itself serve to confine it. Dust will be emitted but again the testimony justifies a finding that the pollution will not be significant in the light of available techniques. There will be some esthetic impairment of a mountain of unquestioned beauty.

We are not confronted with the question whether any or all of the foregoing would justify a refusal to permit the quarrying operation. Rather, the question is whether we can say that Hillsborough's decision to permit it has been shown to be arbitrary or unreasonable. It seems to us that the amendment presented a fairly debatable issue, and hence we cannot interfere with the legislative judgment that the purposes of R.S. 40:55-32 will be ...


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