On appeal from the Superior Court, Chancery Division.
For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld, Burling and Francis. For affirmance and remandment -- Justices Heher, Jacobs and Proctor. The opinion of the court was delivered by Weintraub, C.J. Heher, J. (for affirmance). Proctor, J., joins in this opinion.
The Chancery Division of the Superior Court entered a judgment directing the Village of Ridgewood to dismantle and remove an elevated steel water tower it erected upon Van Emburgh Avenue, partially within the village and partially within the Borough of Ho-Ho-Kus. 46 N.J. Super. 152 (1957). Ridgewood appealed and we certified the appeal on our own motion prior to consideration of it by the Appellate Division.
Ridgewood operates a water supply system serving itself, the Boroughs of Glen Rock and Midland Park and the Township of Wyckoff, and meeting the needs of the inhabitants and municipalities, including fire fighting. The water is obtained from deep-rock wells. There are no reservoirs; storage to meet the increased demands of certain days or portions thereof is provided by tanks.
The pressure being inadequate, Ridgewood engaged a consulting engineer, Mr. Crew, to devise a plan for additional storage. He recommended three tanks, all elevated, one at the Van Emburgh site here involved, another on Goffle Road in Ridgewood, and the third on the Cedarhill site in Wyckoff. The anticipated total cost was $1,701,000.
In view of the sum involved, Ridgewood solicited the opinion of another expert, Mr. Capen. Mr. Capen, then some 1,200 miles away, was familiar with the Goffle site, and on the basis of his recollection of it, said in his report:
"In areas where elevated tanks have been established (and particularly where such installation has been made prior to nearby residential developments) repetition of the practice may well be in order. A very serious question is raised, however, in regard to placing an elevated tank in the Goffle area, near Goffle Road. There are a number of substantial residences in the vicinity which will probably be adversely affected in value by such a structure. It is therefore recommended that the entire matter of this storage be carefully reviewed and that an underground or ground level storage tank be substituted. This procedure is not a new trend but has been adopted in various residential communities."
This recommendation was explored and a decision made to shift from the Goffle site to another on Lafayette Avenue in Wyckoff, where a tank could be installed partially below ground level. The change was profitable. Instead of the Goffle tank, designed to provide storage of two million gallons at an estimated cost of $499,000, Ridgewood obtained storage of 2 1/4 million gallons at Lafayette at a cost of $243,672.84.
With respect to the proposed Cedarhill tank, the Board of Adjustment of Wyckoff refused approval because of objections to an elevated structure. Ridgewood thereupon selected another site where as of the time of trial a ground level tank was to be installed without increase in cost and with an increase in capacity from one million to 2 1/4 million gallons.
Thus as to two of the sites, objections to elevated tanks led to their abandonment in favor of tanks at or below ground level.
Mr. Capen's report was received in February 1955. In September 1955 Mr. Crew approached the governing body of Ho-Ho-Kus with respect to the Van Emburgh improvement. The testimony is not harmonious, but it is clear that the officials of Ho-Ho-Kus understood the tank would be at ground level, the same as the existing water tanks of Ho-Ho-Kus, and as such would be shielded by trees. In
the light of Mr. Capen's report, Mr. Crew should have been explicit, but was not. The board of adjustment and planning board approved, and a permit issued. The approvals were granted informally; Ridgewood concedes that the statutory requirements for a variance or exception were not met, and that if the zoning ordinance of Ho-Ho-Kus applies, it can claim no benefit from the wholly irregular grant.
When the work got under way, it was realized that an elevated structure was involved. It in fact would tower to the height of 160 feet. Ho-Ho-Kus immediately adopted a resolution rescinding the permit, and Ho-Ho-Kus and the abutting Township of Washington and residents affected instituted these actions promptly. About 75 to 85% of the structure itself was completed by the time of trial, representing a cost of some $80,000.
Three issues are involved: (1) whether the improvement violates the zoning ordinance of Ridgewood; (2) whether it violates the zoning ordinance of Ho-Ho-Kus, and (3) whether the action of Ridgewood in any event constitutes an unreasonable and arbitrary exercise of delegated power.
We are satisfied that neither zoning ordinance applies.
In Thornton v. Village of Ridgewood, 17 N.J. 499 (1955), a question involved was whether Ridgewood could acquire property within its one-family district for use as an administrative building and assembly hall. It was held that the zoning statute does not restrain the power of a municipality to determine where to locate municipal facilities within its borders, and hence the issue became whether the zoning ordinance itself accomplished a restriction. As the ordinance then read, "any governmentally owned or operated building" was authorized in the one-family district. It was concluded that the proposed use came within the quoted phrase.
In the course of Thornton, it was indicated that the phrase "governmentally owned or operated" would "seem to bar governmental buildings devoted to industrial or proprietary
use" (17 N.J. at page 514). For the obvious purpose of meeting that view, Ridgewood amended its ordinance to substitute "Any municipally owned or operated building, structure or use" for the phrase quoted above. There can be no doubt that the amendatory expression embraces the storage tank, and hence there is no violation by Ridgewood of its own ordinance.
With respect to so much of the site as is situate in Ho-Ho-Kus, it is conceded that the zoning ordinance of that municipality by its terms forbids the improvement and, as pointed out above, that the informal variance cannot be sustained. The issue accordingly is whether Ridgewood is bound by the ordinance of Ho-Ho-Kus in the use of property as part of a water supply system. We think it is not.
We see no difference between this case and Aviation Services, Inc., v. Board of Adjustment of Hanover Township, 20 N.J. 275 (1956), in which it was held that a municipality's power to establish and maintain an airport was not subject to the zoning ordinance of another municipality in which the airport was situate. In Aviation Services, the municipality was authorized to acquire and ...