Goldmann, Foley and Drenk. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff brought an action in lieu of prerogative writs to have declared invalid a section of the Wayne Township zoning ordinance which prohibited second-hand or used car lots except when incidental to the operation of a new car agency. He also sought an order directing defendants to issue him a license for the operation of a used car lot. The parties made cross-motions for judgment; plaintiff's was denied and defendants' granted.
The facts are not in dispute. Plaintiff applied for a license to sell used cars. It is admitted that he complied with all the procedural requirements of the licensing ordinance. His application was rejected on the ground that the use was in violation of the township zoning ordinance which, by amendment adopted in 1957, specifically prohibited the following use in business districts:
"12. Second hand or used car lots except when incidental to the operation of a duly franchised new car agency." (Italics ours for subsequent reference)
Plaintiff's premises are located on Route 23 in the township. We are informed that the front portion lies within a business zone, and the rear in an industrial zone. He operates a junk yard at the rear -- a permitted use under the zoning ordinance provisions governing industrial districts. He wants to store used cars in the front area. A sign located on this portion of the premises reads: "S & S Wreckers."
Subsequent to the rejection of his license application, plaintiff instituted this action, alleging that the limitation on the operation of used car lots in business districts is
arbitrary, unreasonable, discriminatory and unlawful, and that the 1957 ordinance, as applied to him, denies him equal protection of the law. Defendants' answer admitted the factual allegations of the complaint (with the exception of the allegation that all procedural requirements were met in applying for a license -- and this was later admitted), but denied the invalidity of the quoted provision.
Argument on the cross-motions was held May 27, 1960, at the conclusion of which the trial judge specifically ruled that the purported distinction between used car lots operated in conjunction with a new car agency and those that were not, was invalid. He quoted from Roselle v. Wright , 21 N.J. 400, 409-410 (1956), in support of that conclusion, and referred to our decision in Van Corporation v. Mayor, etc., of Ridgefield , 41 N.J. Super. 74, 82 (1956). There then arose the question as to whether the above italicized portion of paragraph 12, though invalid, was severable, so that the paragraph would then refer only to second-hand or used car lots being prohibited in a business zone. The trial judge said that he would give the municipality an opportunity to determine within a reasonably short time whether or not it proposed to bar all used car lots. If it did, it could amend the zoning ordinance to so provide.
It should be observed that at no time during the argument on May 27 did plaintiff make known to the court that it had been using the front portion of its premises to store used cars, and therefore claimed a nonconforming use. The trial judge first learned of this on the continued date of the argument, held July 1, 1960. At that time counsel stipulated that plaintiff had been operating a used car lot for more than a year, despite the prohibition in paragraph 12 of the zoning ordinance and the denial of applications theretofore made by him for a used car dealer's license under the licensing ordinance. On the basis of that operation, plaintiff argued that if paragraph 12 was invalid in its entirety, he had a legal nonconforming use, and thus any further amendment of the ordinance could not affect him.
When the trial judge again raised the question as to whether the italicized portion of paragraph 12 was severable, plaintiff's attorney advanced the argument that since the exception in favor of new car dealers set up a class within a larger class (second-hand or used car lots), the invalidity of the subclass must result in the striking down of the entire paragraph.
At the conclusion of the argument the court observed that the basic problem was one of determining the legislative intention. He found the intent of the township governing body was to prohibit used car lots. The fact that it had attempted to exempt from this specific prohibition used car lots incidental to the operation of a new car agency, and that the attempted exemption was invalid, did not affect the basic legislative intent. He held that the italicized portion of paragraph 12 was invalid but severable, so that the rest of the paragraph prohibiting second-hand or used car lots could stand. Accordingly, plaintiff's right to a legal nonconforming use had never come into existence. The judgment here under appeal was entered July 26, 1960.
At the time of the July 1 argument the trial judge was not told that the township governing body had under consideration an ordinance that would amend paragraph 12 to read, once more, "Second hand or used car lots." Nor, apparently, did anyone at any time before entry of judgment inform him that the amendment had been adopted on July 5. Here we perceive the same lack of communication as characterized the May 27, ...