This is an action in lieu of prerogative writ challenging the validity of certain provisions of the zoning ordinance of the Borough of Florham Park.
The action was brought also against the board of adjustment of the borough. The first count of the complaint filed on June 6, 1958 alleges that on January 30, 1958 the corporate plaintiff applied for a variance for the erection of a commercial retail structure, having a ground floor area in excess of 5,000 square feet. The borough enacted a general revision of its zoning ordinance on August 3, 1954. The following addition by way of amendment was made on February 5, 1957:
"Section 7.1 B(a) -- The maximum ground floor area permitted for any individual store shall be 5000 square feet. The minimum floor area permitted for any individual store shall be 1500 square feet."
The application for a variance was denied by the board of adjustment on April 23, 1958. This count challenged that determination.
In the second count the corporate plaintiff alleged that on the same date it applied for a variance to erect two commercial retail structures on a parcel of land described in the complaint and said to be situate partly in the B-2 business zone and partly in the R-3 residential zone, one having a ground floor area in excess of 5,000 square feet, and the other less than 1,500 square feet. This application was also denied. In this count relief was sought solely against the board of adjustment.
In the third count the corporate plaintiff challenges the validity of section 7.1 B(a) of the zoning ordinance on the ground that its provisions are arbitrary, capricious, unlawful, discriminatory, and bear no relation to the purposes of zoning as set forth in R.S. 40:55-30 et seq. It questioned on like grounds the placing of lot 2 in Block 19, partly in a B-2 zone and partly in a R-3 zone.
To meet an objection that the corporate plaintiff was not the owner of the lands in question, the complaint was amended
to add as plaintiffs certain individuals who held legal title to the property and who had entered into contractual relations with the corporate plaintiff for its sale.
By an amendment of the zoning ordinance adopted on October 21, 1958 all of the lands here involved were placed in the B-2 zone. It also added section 4.3, which created a 50-foot buffer area in a B-2 zone where it abuts a residential zone, and it amended section 9.5.1 (g) so as to require six square feet of parking area for each square foot of gross floor area of business, commercial and personal service establishments and retail stores. It also revised the zoning map.
On November 24, 1958 the plaintiffs filed their second amendment to the complaint wherein they charged that the said provisions of the amendatory ordinance are invalid.
By a consent order Sixth National Corp., the owner of a shopping center in the vicinity, was permitted to intervene as a party defendant. Before trial there was a dismissal by stipulation of the first and second counts of the complaint. This eliminated the board of adjustment from the action.
The revised ordinance of 1954 fixed the maximum percentage of coverage of all buildings in a B-2 zone at 30%; by the February 5, 1957 amendment this was reduced to 20%. In the revised ordinance, the parking space ratio was fixed at 2 to 1; the amendment of February 5, 1957 increased it to 4 to 1, and that of October 21, 1958, to 6 to 1.
The borough contends that the challenged provisions of the ordinance are in all respects valid. The defendant Sixth National Corp. asserted as a separate defense that it "has a vested right to the enjoyment of the ordinance, its privileges and burdens, as presently effective and regulatory." In its answer to the second amendment of the complaint, it stated that it had no interest in the allegation thereof "other than to assert and protect its rights under the provisions of Secion 7.1 B(a) of the zoning ordinance of the Borough * * *." This section fixes the minimum and maximum floor area for an individual store.
The testimony in the case came with one exception from experts. Robert F. Edwards, who has been engaged in the city and town planning field since 1941, and who is presently employed in that work by the Town of Montclair, testified he had never seen a maximum ground floor limitation in any ordinance except that of the City of Summit, where a maximum of 80,000 square feet is fixed for shopping centers. He said the effect of the instant provision is to eliminate supermarkets which he said have an average ground floor area in excess of 5,000 square feet; and he added such markets are in reality neighborhood stores. He said that it eliminates furniture stores which require display areas; and has the effect of eliminating variety stores, which ordinarily require space in excess of 5,000 square feet. He referred to the average ground floor area of stores in shopping centers as disclosed in professional reports, some of them being as follows:
Bakery 1200 -- 1800 sq. ft.
Bank 2000 -- 3600 sq. ft.