For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Hall, J.
The fundamental question in this case is the constitutional validity of provisions of defendant township's zoning ordinance which greatly restrict the use of swampland and have for their prime object the retention of the land substantially in its natural state, essentially for public purposes. The provisions not only control land uses in the district, but also strictly regulate any reclamation or improvement of land therein. The Law Division sustained the provisions in a prerogative writ action brought by the plaintiff, a land owner within the area. We certified its appeal on our own motion before it was heard in the Appellate Division.
Parsippany-Troy Hills is a large, sprawling township in Morris County, with a great quantity of vacant land, which has in late years undergone very considerable development activity, accompanied by concomitant increase in population, with the usually resultant problems of planning and zoning. A fuller description of the municipality and a chronology of
land use regulation therein may be found in Newark Milk and Cream Co. v. Township of Parsippany-Troy Hills, 47 N.J. Super. 306, 321-327 (Law Div. 1957).
The particular area here involved is a large swamp of 1,500 or more acres known as Troy Meadows. It is located mostly in the southeasterly corner of the township extending to some extent easterly into East Hanover Township and to a slight degree southerly across the boundary of Hanover Township. It and other similar formations in nearby municipalities represent the remaining parts of what was once Lake Passaic, a huge body of water formed eons ago by action of the last glacier in blocking the original channel of the Passaic River. Now, Troy Meadows slowly drains, by means of small streams and man-made ditches running through it, into tributaries of the present Passaic River and forms a portion of that river's basin.
As might be expected, the elevation of the area is low in relation to the surrounding land and considerably below the grade of the roads encircling or running through it. The terrain is typical swampland, with a high water table and marsh grass and cattail vegetation. The surface soil is black or dark brown muck and peat, two to six feet deep, wet and very unstable. The second stratum, from two to four feet in thickness, consists of clay and silt materials which drain poorly and are highly compressible in nature. The bottom layer is composed of sand and gravel, found, on the average, seven or eight feet beneath the surface. The testimony in the case is uncontradicted that the two top layers will not bear structures, are unsuitable for fill and would have to be removed and the land filled with proper material before it could be used for any active purpose, except possibly the raising of fish or the growing of aquatic plants.
At the present time, there are practically no active land uses in the Parsippany-Troy Hills portion of the area. About 75% of it is owned by Wildlife Preserves, Inc. (Wildlife), a private noncommercial, but tax-paying corporation, interested in conservation and preservation of the natural state of the
area as a public or quasi -public wildlife sanctuary and nature study refuge. This organization has been energetic and apparently quite influential in urging the local authorities to restrict use of all of the land accordingly. It has even opposed filling of any of the land on the basis that the effect of the fill on the water would be biologically adverse to the conservation of wildlife.
There is no doubt that the area in its present state, acting essentially as a sponge, constitutes a natural detention basin for flood waters in times of very heavy rainfall, which would otherwise run off more quickly and aggravate damaging flood conditions occurring with some frequency in municipalities farther down the Passaic River valley. During such periods, Troy Meadows itself is flooded to some extent, but apparently with little, if any, effect on surrounding higher land.
Plaintiff's property consists of 66 acres in the lower corner of the meadows, fronting several hundred feet on Perrine (or Troy) Road, a dirt highway which is the boundary line in this section with Hanover Township. This acreage is part of a large tract, the balance of which is located across the road in Hanover. The entire parcel was acquired in 1952. The Hanover portion consisted mostly of high land, with a small amount of swamp near the road. At the time of acquisition and since, it has been zoned for industrial use. Plaintiff operates a sand and gravel business at the location in Hanover and has filled in the swampy portion of its property in that township with overburden and other unusable material from the sand and gravel pit.
At the time of acquisition, plaintiff's 66 acres in Parsippany-Troy Hills, along with the rest of Troy Meadows, was zoned, like the high land to the west, in the most restrictive residential classification under the township's original zoning ordinance adopted in 1945. The validity of the inclusion of the swamp in such a zone is indeed most doubtful, but apparently it was never attacked and, since no one would build an expensive home in a marsh, it served the practical purpose of precluding all development.
In 1954 an amendment to the zoning ordinance established "The Indeterminate Zone Classification * * * to cover such parts of the Township as Troy Meadows, where the nature of the land is such that its most appropriate future use is dependent on decisions by others than the government of the Township, such as with respect to flood control, and any change of present use and condition should be subject to special and individual consideration." The amendment forbade any new use, or change in existing use except for agricultural purposes or the growing of fish, water fowl and water plants, and also forbade any dumping or other disposal of material or any change in the natural or existing grade of the land, without the obtaining of a special permit from the Township Committee. From the evidence in the instant case, it is apparent that these almost "freezing" regulations were enacted as a stopgap or interim measure with the expectation or hope that higher governmental authority might well acquire the area as part of a large and much discussed flood control project to benefit the entire Passaic Valley -- a project which has not yet come to pass.
Plaintiff attempted no utilization whatever of its Parsippany-Troy Hills land from 1952 until June 1959 when it commenced to fill along the edge of the road with overburden and excess material from the gravel pit operation, without obtaining any permit. Wildlife made a complaint against it in the Municipal Court for violation of the indeterminate zone regulations. While the complaint was pending, plaintiff unsuccessfully applied to the governing body to rezone its property for industrial use. Thereafter, in January 1960, plaintiff was granted a limited permission by the Township Committee to place fill to a depth of 300 feet from Perrine Road at its own risk, since the matter of the revision of land uses in the area was then under study by the township. This permission was conditioned upon submission to, and approval by, the Township Engineer of a sketch showing grades. Plaintiff resumed filling, but did not submit the sketch.
In March 1960, after an extended consideration of the meadows area by planning consultants and township officials, the indeterminate zone provisions were repealed and a new zoning classification created for the area under the title "Meadows Development Zone." The first paragraph of the new regulations set forth the purpose:
"The Meadows Development Zone classification is established to be applied to areas of the Township with a high water table. These areas can perform a function for the Township of Parsippany-Troy Hills, if they are properly regulated in their uses. Therefore, the following special regulations become necessary to provide for the most appropriate uses of land in the district which will permit development in harmony with its character and the regional requirements for the area."
The new regulations permitted the following uses as of right: agricultural uses; raising of woody or herbaceous plants; commercial greenhouses; raising of aquatic plants, fish and fish food (with a one-family dwelling as an adjunct to any of these uses, provided its lowest floor was a specified distance above flood level); outdoor recreational uses operated by a governmental division or agency; conservation uses "including drainage control, forestry, wildlife sanctuaries and facilities for making same available and useful to the public"; hunting and fishing preserves; public utility transmission lines and substations; radio or television transmitting stations and antenna towers; and township sewage treatment plants and water supply facilities.
The section went on to provide for what were designated as "uses which may be permitted as special exceptions by the Board of Adjustment under R.S. 40:55-39(b)," with the following preamble:
"* * * In determining whether a special exception shall be granted, the Board shall apply the standards set forth for each particular use and, in addition, shall determine that in its development and operation the proposed use will conform to the general purposes for which the district is established, and will not impair present or potential use of adjacent properties, as may be permitted under the terms of this section." [40 NJ Page 546] These so-called permitted uses amounted, for the most part, to strict regulation of land reclamation in aid of uses allowed as of right.*fn1 Thus, a special exception, with particular conditions, was required for any permitted use which involved a change in any drainage ditch, for the removal of earth products, such as gravel, sand, fill-dirt and peat, and for the diking, damming or filling of any land within the zone with an existing elevation of less than 175 feet above sea level (apparently this limitation would encompass practically all the land in the zone). The standards and conditions for exceptions to permit removal of earth products and filling included intricate site plan approval by the Planning Board together with studies and reports by other township officials and ...