For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Proctor, J.
The defendant Gould, an operator of a trailer park within the plaintiff Township of Washington (Township), was convicted in the municipal court of violating the Township's zoning ordinance by unlawfully expanding his trailer park, a nonconforming use under the ordinance. After a trial de novo, the conviction was affirmed by the Morris County Court. On appeal, the Appellate Division affirmed the conviction below, holding that the total exclusion of trailer parks by the zoning ordinance was constitutional. The defendant appeals to this court pursuant to R.R. 1:2-1(a).
The defendant is the owner of a tract of land comprising 44.7 acres in the Township, on which he began construction of a trailer park in 1955. At that time, the Township had no zoning ordinance. The trailer park was opened for business early in July 1957, and the first two trailers were installed on July 3 of that year.
On July 11, 1957 the Township adopted a comprehensive zoning ordinance which totally excluded trailer parks from the municipality. On July 23, 1957 two more trailers were installed on the defendant's property. Shortly thereafter, the Township instituted a civil action in the Chancery Division of the Superior Court seeking to restrain the defendant from operating his trailer park in violation of the ordinance. See N.J.S.A. 40:55-47. In his answer the defendant denied the alleged violation and counterclaimed for a declaratory judgment that the ordinance was unconstitutional to the extent that it totally excluded trailer parks from the Township. The relief requested in the counterclaim was that the
ordinance be declared invalid either "in its entirety" or so far as it prohibited trailer parks on the defendant's premises. In addition, ancillary injunctive relief was sought to restrain enforcement of the ordinance against the defendant's use of his property for trailer park purposes.
At the pretrial conference in November 1957, the parties agreed that the issue of whether the ordinance was invalid should be disposed of prior to trial. Accordingly, briefs and a stipulation of facts for purposes of the argument on that issue were presented to Judge Stanton in March 1958. The stipulation set forth the population and character of the Township and a description of the defendant's property and the neighboring lands. Aerial photographs and the zoning map were also submitted. After argument, Judge Stanton held that "upon the facts in the case" the ordinance was "not invalid because of the exclusion of trailer parks," and on June 24, 1958 he entered an order to that effect.
After the commencement of trial on the remaining issues raised by the pleadings, the matter was settled by a stipulation of the parties which was recorded in open court on November 17, 1958. In accordance with this stipulation, a final consent judgment with prejudice was entered on December 5, 1958. That judgment in pertinent part provided:
"1. The trailer park presently operated by the defendant, Leonard O. Gould, on Route 24, Washington Township, Morris County, New Jersey, shall henceforth be treated and considered as a non-conforming use under the presently existing zoning ordinance of the Township of Washington, and this non-conforming use shall be such to the extent of 35 spaces for the use of 35 trailers on the defendant's property.
2. There shall be no expansion of this non-conforming use except as provided by law and except by application through local officials or agencies in accordance with the zoning ordinance of the Township of Washington.
3. The operation of the trailer park as herein specified shall be subject to reasonable regulation by the municipality under State Law and as provided by local ordinance presently existing or to be adopted in the future.
4. The various claims and counterclaims of the parties against each other raised by virtue of the pleadings ...