On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J. Heher, J. (concurring).
The complaint attacked the validity of a supplement to a zoning ordinance. While the action was pending plaintiffs applied for a variance or exception which was denied, and by amendment of the complaint they sought as well a review of that refusal. The trial judge found the supplement to be invalid and for that reason did not pass upon the action of the board of adjustment. The appeal challenges the judgment as entered. The action of the board of adjustment is not before us.
We certified the appeal on our own motion before determination of it by the Appellate Division.
Plaintiffs own property at the intersection of the Boulevard and Washington Place in Hasbrouck Heights. It has a frontage of 144 feet on the Boulevard and a depth of 75 feet. There is presently upon the land a dilapidated residence which plaintiffs plan to raze and replace with a three-story brick structure having two stores on the ground floor and a total of 21 living units. The property is in a business district, in which, prior to the questioned supplement, an apartment house could have been erected.
The supplement, adopted on September 21, 1955, reads:
"No apartment house, or other multiple family dwelling which is arranged, intended or designed to be used by more than two families shall be erected or used in any zone or district in the Borough of Hasbrouck Heights."
The bulk of the testimony offered by plaintiffs to support their attack upon the ordinance revolves about the economics of an improvement of their property rather than the appropriateness of the measure either with respect to the entire borough or the business district. The evidence is far from impressive even with respect to the parcel in question, since it falls short of demonstrating that the property may not be utilized for permitted purposes. At any rate, if the ordinance were shown to be invalid as to plaintiffs' property alone, it could not be declared a nullity throughout the borough or in the district in which the parcel is situated. And the proof being insufficient as to the property in question, we need not consider whether the remedy for such localized invalidity would be by variance or exception rather than by an attack upon the ordinance. See Kozesnik v. Montgomery Township, 24 N.J. 154, 183 (1957).
The trial court did not find for plaintiffs on the thesis described above, but rather held that "an absolute prohibition" of more than two-family units "after the character of the town had been fixed" was beyond the municipal power.
Hasbrouck Heights is a small municipality embracing but 960 acres (approximately 1 1/2 square miles), with a population of 11,000.
Most of the borough is situated upon a plateau. It is zoned for residential or business use, except in the lowlands on the easterly side where a strip between New Jersey State Highway Route 17 and a railroad is zoned for light industry up to the intersection with New Jersey State Highway Route 6, and for limited heavy industry beyond that intersection. There is a small rectangle east of the railroad and abutting the Boroughs of Moonachie and Teterboro, which is zoned for heavy industry. By reason of the terrain, the highways, and the railroad, the industrial districts constitute physically a distinct portion of Hasbrouck Heights with little influence, if any, upon the upper region.
Returning to the plateau, we find the bulk of it zoned for residential districts A and AA, ...