a portion of a lot land belonging to the plaintiffs had been declared unconstitutional by the district court earlier as an unreasonable and arbitrary exercise of the city's police power. This judgment of the Court in 1942 had further enjoined the city from enforcing the zoning ordinance against the plaintiffs 'insofar as it denied them the right to use the southern half of the lot in such manner as is permitted in a B-1 business district in the zoning ordinance.' After this judgment was entered, but prior to the institution of the declaratory judgment suit in 1945, the city had adopted a new general zoning ordinance in 1943. The 1943 ordinance forbade the use of the southern half of the lot for a gas station which had been permitted by the court under the 1942 injunction. The plaintiffs therefore sought by means of a declaratory judgment to have the Court adjudge that the effect of the 1942 judgment was to allow plaintiffs and their successors in title to use the property for a gasoline station and certain other uses, and that the city could not constitutionally enact any ordinance after the 1942 injunction which would take away any of the property rights of the plaintiffs established by the prior judgment. In support of the conclusion by the Court of Appeals in West, that the case did not present an 'actual controversy' within the meaning of the Federal Declaratory Judgment Act, it found that the plaintiffs failed to show a definite present intention on their part to use the lot for any purpose forbidden by the city ordinances, and that they failed to allege that they desired or were about to use the property for a gasoline station or other business purpose. Id. at page 568. The Court further pointed out that 'the discussions at the conferences before [it] failed to develop a definite, concrete conflict of a justiciable character.' Upon these findings it was concluded that the plaintiffs were simply seeking an advisory opinion from the Court 'that if and when the opportunity offered they would be free to use or sell the lot for the indicated purpose.' Ibid. Citing Aetna Life Insurance Co. v. Haworth, supra, and Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S. Ct. 510, 85 L. Ed. 826, the Court thereupon held that what the plaintiffs therein were attempting to do could not be done under the Declaratory Judgment Act as the case did not present a definite and immediate controversy for which the Act was designed.
The similarity of the efforts being made by the plaintiffs in the case at bar to those disapproved by the Court in the West case is striking. The plaintiffs herein are likewise seeking an advisory opinion from the Court. In essence they desire to know whether, if and when the opportunity offers itself, they will be free to use or sell their lots for the purposes permitted in the 'C-2' zone, which purposes are allegedly precluded by the location of the present 'C-2' zone boundary line. The advisory opinion here sought is not an interpretation of the Court's prior judgment, as in West, but a declaration in vacuo of the constitutional invalidity of a municipal ordinance, authorized by a State Constitution and by a State statute. To the expression of such an opinion the Federal District Courts have ever been averse. Muskrat v. United States, supra. In passing, it is interesting to note the later phase of the West litigation (167 F.2d 664). The property owners had removed the objection that the original suit was not an 'actual controversy' by showing they had contracted to sell the premises for a gas station and further had been refused a building permit by the City's Commissioner of Buildings for such station. The District Court entered a declaratory judgment again for the plaintiff property owners. The Court of Appeals expressed itself respecting the constitutional issue as follows:
'The court below did not pass upon the constitutionality of the ordinance of 1943 and we do not undertake to decide it now, but merely reverse the judgment below (enjoining the enforcement of the zoning ordinance) and remand the case for such further proceedings as the parties may desire to take. We hold only that the ordinance of 1943 must be given effect unless it shall be found to be invalid and that the question of invalidity should not be considered by the District Court until the property owners may have exhausted such administrative remedies as may be available to them.' West v. Bank of Commerce & Trusts, 4 Cir., 167 F.2d 664, 667.
The present defendant Borough is given authority to adopt zoning ordinances by N.J.S.A.Const. (1947) Art. 4, § 6, Par. 2, and by the legislation enacted pursuant to such constitutional delegation, N.J.S.A. 40:55-30. Fischer v. Township of Bedminster, 11 N.J. 194, 93 A.2d 378. Such authority is clearly within the police power of a State. Euclid, Ohio, v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303. The New Jersey Legislature required the municipal governing body to provide for the appointment of a Board of Adjustment. N.J.S.A. 40:55-36. It further provided, in enumerating the powers which such Boards of Adjustment may exercise, that where 'the strict application of any regulation enacted under the act' would result in a hardship to the property owner, a variance could be granted to relieve such hardship, N.J.S.A. 40:55-39, subd. c; and that 'in particular cases and for special reasons' the Board could recommend to the municipal governing body a variance to allow a structure or use in a zone which prohibits such structure or use and, if the municipal governing body approves, the structure or use can be permitted. N.J.S.A. 40:55-39, subd. d. Nowhere in the record before me is any showing that the plaintiffs, in view of the hardships of which they complain, have invoked the ameliorative powers of the Board of Adjustment. Such statutory procedure constitutes ample due process.
From such action as the Board of Adjustment in certain cases, or the municipal governing body upon recommendation of the Board in other cases, may take or refuse to take, there remain, of course, the present New Jersey equivalents of the former writs of certiorari and mandamus, by means of which any impropriety in the action or inaction of either of the statutory bodies may be reviewed in the State courts. New Jersey Civil Practice Rule 4:88. It does not appear in this case that the plaintiffs have availed themselves of any of the procedures open to them short of their application to this Court.
The Court is also mindful of the admonition that before a Federal court adjudicates the constitutionality of a municipal ordinance by means of a declaratory judgment, it should, in the sound exercise of its discretion, await the prior determination of that issue by the State court immediately involved. Tower Realty, Inc., v. City of East Detroit, 6 Cir., 196 F.2d 710; cf. East Coast Lumber Terminal v. Town of Babylon, 2 Cir., 174 F.2d 106. Indeed, it is the duty of the Federal courts to avoid the unnecessary decision of constitutional questions. Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725. The Supreme Court set this course in Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971, and reaffirmed this view with regard to suits requesting declaratory judgments in City of Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 62 S. Ct. 986, 86 L. Ed. 1355.
However, the existence of a justiciable controversy, which is essential to the plaintiffs' right to a remedy under the Declaratory Judgment Act, has not been shown in this case. Furthermore, the Ordinance is authorized by the New Jersey Constitution and the New Jersey Zoning Law. The plaintiffs have their remedies in the statutory and judicial tribunals provided under the laws of that State. Those tribunals are presumed to be effective and competent to adjudicate the constitutional question here presented if the question is reached by them. This Court will not prejudge that question until those remedies have been exhausted. City of Chicago v. Fieldcrest Dairies, Inc., supra.
This Court is required to raise the question of its jurisdiction sua sponte whenever it comes to its attention. Underwood v. Maloney, 3 Cir., 256 F.2d 334; Page v. Wright, 7 Cir., 116 F.2d 449; cf. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135. Because no justiciable controversy is disclosed here, and because the Court finds that it should withhold jurisdiction, the complaint must be dismissed. Alabama State Federation of Labor v. McAdory, supra; Aralac, Inc., v. Hat Corp., 3 Cir., 166 F.2d 286; Bratley v. Nelson, D.C.S.D.F.la., 67 F.Supp. 272.
Plaintiffs have consented to dismissal of the third, fourth and fifth counts of the amended complaint.
The motion of defendants for summary judgment upon the first and second counts is granted, and that of the plaintiffs is denied, with costs to the defendants. An order may be submitted in conformity with the foregoing views.
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