For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Haneman, J.
[39 NJ Page 75] Plaintiff owns a six and one-half acre tract of land in the Township of Mahwah. The contour of the parcel is triangular. Its two legs extend, respectively, 734 feet along West Ramapo Avenue and 807 feet along Route 17. Its base extends 734 feet along lands presently or formerly
owned by one Helwig. The frontage along Route 17 is zoned for business to a depth of 200 feet. The balance of the lands are zoned for AA residential use. At an undisclosed time in the past, plaintiff excavated the business section of its property adjoining Route 17, reducing its elevation to the grade of that highway. Upon this strip it constructed two service stations. The lowering of the elevation of this strip left a plateau upon the reduced triangle approximately 20 feet higher than Route 17 and Ramapo Avenue, with a gradual slope upward to the Helwig lands.
On or about July 2, 1959, plaintiff advised defendant that it intended to erect three residences on the portion of the tract zoned for that use, and that the existing topography made the lands undesirable for such a purpose. It stated that in order to remedy this condition it intended to remove the soil from the entire plateau to reduce the elevation to the grade of Ramapo Avenue. Plaintiff requested confirmation that no special permit would be required for such soil excavation and removal. It was informed that its intended project fell within the prohibitory confines of municipal ordinance 149 of 1953 which provides:
"Section 1. No person shall excavate or otherwise remove soil for sale or for use other than on the premises from which the soil shall be taken, except in connection with the construction or alteration of a building on such premises, and excavation or grading incidental thereto, without first having procured permission therefor from the Township committee of the Township of Mahwah."
Under protest, plaintiff filed an application for a permit in accordance with the requirements of section 2 of the ordinance. After a public hearing participated in by neighborhood property owners, the Township Committee denied plaintiff's application, resting its decision upon the following findings of fact:
"Whereas the L.P. Marron Company has made application for said removal under ordinance number 149 as amended, and whereas a hearing on said application was had even date herewith now therefore
be it resolved by the Township Committee of the Township of Mahwah that the said application be denied it being determined as a fact that contour lines and grades on map accompanying said application would cause a drainage condition that would flood septic disposal systems and houses if any located below slopes and would adversely affect land values in the area of the proposed dirt removal and would adversely affect the co-ordinated adjusted and harmonious physical development of the Township."
Plaintiff thereupon instituted an action in lieu of prerogative writs seeking an enforcement of its alleged rights to excavate and remove the soil, asserting: (1) The contemplated excavation and removal was to be accomplished "in connection with the construction * * * of a building" on the premises, and therefore under the terms of the ordinance no permit was required, and (2) even if a permit was required, plaintiff proved that the proposed project complied with the norms and standards set forth in the ordinance precedent to issuance thereof and accordingly, defendant erred in its refusal.
The matter was submitted to the Law Division upon the stenographic record of the municipal hearing. The trial court found in favor of the defendant. Plaintiff appealed to the Appellate Division, which reversed that judgment in an unpublished opinion, holding that plaintiff was exempt from the ordinance. This court granted defendant's petition for certification. 38 N.J. 179 (1962).
Although the transcript of the municipal hearing is somewhat abstruse, the following additional facts can be garnered therefrom:
Plaintiff acquired the subject property in 1955. At that time, a residence and a carriage barn which contained an apartment were situate thereon, facing Ramapo Avenue. Plaintiff admitted that the residence, although not of recent construction, was habitable and "a valuable piece of property." The house was situated approximately 300 feet from Route 17, 75 feet from Ramapo Avenue, and 250 feet from the Helwig line. A curved driveway, extending approximately 250 feet in each direction from the house, gave
access to Ramapo Avenue. The surrounding lands were wooded. In December 1955, plaintiff was granted a variance from the terms of the zoning ordinance by the Board of Adjustment, which variance would have permitted the construction of a motel upon a 200-foot wide strip of land adjacent to the business zone. It proceeded to demolish the existent buildings and thereafter felled many of the larger trees on the tract. Objectors to the variance initiated an action in lieu of prerogative writs. As a result the Law Division set the variance aside. Plaintiff did not appeal.
Plaintiff subsequently obtained municipal approval for the subdivision of the residentially zoned lands into three lots. It made application to the building inspector for a permit to erect one house, which was denied for failure to supply a percolation test. Plaintiff's excuse for this omission was the impracticability of completing such a test when it anticipated removing the present soil to a depth of 20 feet.
Plaintiff indicated its intention to reduce the elevation of the land approximately to the grade of the two converging highways. To accomplish this it proposes to excavate and remove some 36,000 cubic yards of soil in the first year and to continue with such undertaking until a total of 76,000 cubic yards is excavated and removed. It intends to use 20,000 cubic yards thereof as fill for lands which it owns directly across Route 17 from this property in order to raise the grade thereof to that of the highway. The balance will be available for sale.
Although plaintiff does not assert that the lands in their natural state are unuseable for residential purposes, and that the proposed excavation is therefore essential, it does urge that "[i]n order to properly use the three lots in accordance with the existing zoning ordinance (for residential purposes), it was necessary to bring down the grade of the terrain to overcome the difficulty of ingress and egress to the homes to be erected thereon." A large portion of its proof at the ...