For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None.
The appeal in this zoning matter was certified on our motion before argument in the Appellate Division. The original hearing was held in the Superior Court, Law Division, where Judge J. Edward Knight filed the following opinion:
"This is an action in lieu of prerogative writ brought by the plaintiff, Swimming River Golf and Country Club. The substance of the complaint challenges the validity of an amendment to the zoning ordinance of the Borough of New
Shrewsbury which was adopted by the governing body of said borough on June 6, 1957. At oral argument the plaintiff's attorney waived all of the allegations in the complaint based upon alleged procedural defects in the passage of the amendment and rested plaintiff's case on the contention that the amendment itself is invalid as a matter of law and must be set aside in its entirety. Supplemental briefs having been filed on this particular issue and the court having heard additional oral argument this morning, the following might be considered as the opinion of the court.
"The facts in this case relevant to the decision are undisputed. The plaintiff is the owner of approximately 52 acres of land located in the Borough of New Shrewsbury, Monmouth County. Said premises were prior to June 6, 1957 zoned in a Residence One zone, which required for the erection of a dwelling a minimum lot frontage requirement of 125 feet and a minimum lot area requirement of 25,000 square feet. On June 6, 1957 the governing body of the Borough of New Shrewsbury adopted an amendment to the zoning ordinance of said borough which increased the minimum lot frontage requirement to 200 feet and the minimum lot area requirement to 40,000 square feet in the Residence One zones. This amendment also provided for exceptions to these requirements which could be made under specifications as provided within said amendment.
"The challenged portion of section 2 of the amendment of the zoning ordinance which was adopted on June 6, 1957 provides that 'In case of uncertainty or disagreement as to the true location of any one boundary line, determination thereof shall be with the Borough Planning Board.'
"This provision is in direct conflict with N.J.S.A. 40:55-39(b),which provides that 'The Board of Adjustment shall have the power to: Hear and decide, in accordance with the provisions of any such ordinance * * * interpretations of the map * * *.'
"It is contended by the plaintiff that this provision unlawfully delegates to the planning board the power to interpret
the zoning map where questions arise. The court is of the opinion that this contention has merit, and that this provision of the amendment is invalid. Matters committed to the board of adjustment by state statute may not in any way be circumscribed. Saddle River Country Day School v. Saddle River, 51 N.J. Super. 589 (App. Div. 1958). It seems obvious, therefore, that the borough's attempt to delegate to the planning board the power to decide questions relating to the zoning map is invalid and not in compliance with the enabling statute. See Goldstein v. Lincoln Park Planning Board, 52 N.J. Super. 44 (App. Div. 1958); Schmidt v. Board of Adjustment of the City of Newark, 9 N.J. 405 (1952).
"Sections 3 and 5 of the amendment to the zoning ordinance adopted on June 6, 1955 establish the new minimum lot width and area requirements in Residence One and Residence Two zones, respectively, to allow the erection of a dwelling in those zones. Each section then goes on to provide that 'Exceptions to the foregoing may be made by the Planning Board of the Borough of New Shrewsbury in cases of applications for sub-division of lands, such exception to be made in accordance with the schedule hereinafter set forth. The Planning Board is hereby empowered to approve lots for subdivision of lands showing lots smaller in width and area than as required in paragraph (1) hereinabove but only in accordance with the schedule hereinafter set forth in this paragraph * * *.'
"The basic scheme of the schedule contained within the amendment is to allow variations within prescribed limits from the width and area requirements where ...