Decided: January 20, 1964.
HOWARD MORRIS, EDWARD MORRIS AND ROSE MORRIS, PARTNERS, TRADING AS CARICK REALTY CO., PLAINTIFFS-APPELLANTS,
NICHOLAS W. POSTMA, BUILDING INSPECTOR OF THE BOROUGH OF FAIR LAWN, AND THE PLANNING BOARD OF THE BOROUGH OF FAIR LAWN, DEFENDANTS-RESPONDENTS. HOWARD MORRIS, EDWARD MORRIS AND ROSE MORRIS, PARTNERS, TRADING AS CARICK REALTY, CO., PLAINTIFFS-APPELLANTS, V. MAYOR AND COUNCIL OF THE BOROUGH OF FAIRLAWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS
For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For reversal -- Justice Hall.
The judgment is affirmed for the reasons expressed in the opinion of Judge Sullivan in the Superior Court, Appellate Division.
On appeal from a judgment of the Superior Court, Appellate Division, where the following opinion was filed. "Defendants appeal from a judgment of the Law Division declaring an amendment to the zoning ordinance of the Borough of Fair Lawn to be invalid and ordering the Building Inspector of said borough to issue a building permit to plaintiffs.
"Plaintiffs are the owners of premises 21-20 Broadway (Route No. 4) in the Borough of Fair Lawn. Said premises are located in a B-1 (Business) Zone under the Borough Zoning Ordinance. There has been previous litigation involving the granting of a variance to permit the use of said premises as a car washing station. See Bern v. Borough of Fair Lawn, 65 N.J. Super. 435 (App. Div. 1961).
"In February 1962 plaintiffs proposed to establish a drive-in restaurant on said premises. Such proposed use was not prohibited in a B-1 zone under the then zoning ordinance. However, the ordinance did provide that 'no building shall be constructed or located in a business or industrial district without first having obtained the written approval of the Planning Board to a plot plan, site plan, building plan and specifications.' Accordingly, on February 13, 1962 plaintiffs submitted their plans to the Planning Board and applied for approval thereof. Several hearings were held on plaintiffs' application but the Planning Board took no action thereon. The Building Inspector refused to issue a permit to plaintiffs without the approval of plaintiffs' plans by the Planning Board.
"The record discloses that at the time plaintiffs' application to the Planning Board was made, the borough was experiencing considerable trouble with another drive-in restaurant, a place where 'young people' congregated. Numerous complaints of rowdyism, uproar, litter, fist fights, and speeding in cars had been received. In considering plaintiffs' application one of the members of the Planning Board, Mr. Brown, called to the Board's attention that some other communities had ordinances prohibiting drive-in restaurants. A further hearing on plaintiffs' application was held by the Planning Board on March 20, 1962, at which expert testimony dealing with the feasibility of establishing a drive-in restaurant on plaintiffs' premises was presented but, as heretofore noted, the Board took no action on plaintiffs' application.
"On March 27, 1962, a meeting of the Municipal Council was held at which the Mayor stated that 'considerable furor from residents was expressed at recent borough meetings' with respect to plaintiffs' application, and that he had received a 118-name petition 'protesting such construction.' The Mayor announced that an amendment to the zoning ordinance prohibiting drive-in restaurants was being prepared.
"A meeting of the Planning Board was held on April 17, 1962, at which the Mayor and Council pursuant to N.J.S.A. 40:55-35 submitted a proposed amendment to the zoning ordinance, the effect of which was to restrict the uses permitted in a B-1 zone as follows:
'Uses * * * shall not be interpreted to include and are hereby defined to exclude drive-in restaurants or refreshment stands, commonly called snack bars, dairy bars, hamburger stands or hot dog stands where customers and patrons are served food, soft drinks, ice cream * * * for their immediate consumption * * * outside the confines of the building or structures in which the business is conducted * * *.'
Plaintiffs appeared at the meeting, through counsel, and again pressed for approval of plaintiffs' application and charged that the Planning Board was delaying action on plaintiffs' application until after the amendment to the zoning ordinance was adopted. The Planning Board returned the proposed amendment to the Council with the recommendation that the same be adopted. It again took no action on plaintiffs' application.
"On April 19, 1962 plaintiffs commenced an action in the Law Division to compel the issuance of a building permit, and on May 4, 1962 obtained summary judgment ordering the Building Inspector to forthwith issue a building permit to plaintiffs. An appeal was taken from said judgment.
"In the meantime the proposed amendment to the zoning ordinance was introduced at the Borough Council meeting of April 24, 1962, and passed first reading. It was adopted on final reading on May 9, 1962.
"On May 15, 1962 plaintiffs filed suit seeking to have the amendatory ordinance declared void. Subsequently, this court, on defendants' motion, remanded plaintiffs' first suit to the Law Division for consolidation with plaintiffs' second action attacking the validity of the amendatory ordinance.
"At the hearing on the consolidated cases it was stipulated that without reference to the amendatory zoning ordinance (enacted May 9, 1962), the judgment of the Superior Court dated May 4, 1962 would entitle plaintiffs to a building permit.
"The trial judge, after hearing the proofs, found that the ordinance was passed solely for the purpose of avoiding, at any other location in the municipality, a repetition or a compounding of occurrences such as had occurred at the other drive-in restaurant. This, held the court, was a matter for the Board of Health, the Police Department, and the owners of the premises, but was outside the scope of zoning, i.e., was not enacted for a permissible objective within the Zoning Act. As heretofore noted, the court entered judgment declaring the May 9, 1962 amendatory ordinance to be invalid, and ordering the Building Inspector to forthwith issue a building permit to plaintiffs. It is this judgment which is before us for review.
"A municipality has the unquestioned power to control the use of property by zoning regulation, N.J.S.A. 40:55-30 et seq. See Cunningham, Control of Land Use in New Jersey By Means Of Zoning, 14 Rutgers L. Rev. 37 (1959). Of course the power must always be exercised within statutory limits, and for legitimate zoning purposes.
"Judicial review of a zoning ordinance duly adopted by a municipality is confined to a narrow sphere. There is a presumption in favor of the validity of the ordinance which can only be overcome by an affirmative showing that the ordinance is arbitrary or unreasonable. As is stated in Vickers v. Tp. Com. of Gloucester Tp., 37 N.J. 232, 242 (1962), cert. denied 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed. 2 d 495 (1963) 'By these standards which control judicial review, the plaintiff to prevail must show beyond debate that the township in adopting the challenged amendment transgressed the standards of R.S. 40:55-32.'
"The purposes of zoning, as stated in R.S. 40:55-32 are as follows:
'* * * to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the over-crowding of land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.'
The Borough of Fair Lawn as shown by its zoning map is essentially a residential community. The business districts are severely limited in size and depth and are surrounded by heavily developed residential areas. The predominance of the residential areas and their proximity to the relatively small business districts are factors to be considered in appraising the reasonableness of the prohibition against certain types of business uses.
"Our review of the record leads us to conclude that plaintiffs have not overcome the presumption in favor of the validity of the amendatory ordinance by an affirmative showing that it transgressed the standards of R.S. 40:55-32, or that it is arbitrary or unreasonable.
"A drive-in restaurant use is concededly not illegal, nor necessarily a nuisance. However, the borough's experience with the other drive-in restaurant led it to conclude that this type of business use was susceptible to and resulted in rowdyism, litter and related problems affecting the public health, welfare and safety. This conclusion cannot be said to be unwarranted. The record indicates that other municipalities have legislated against this type of business use.
"Many zoning ordinances prohibit certain business uses which are not illegal but by their very nature create special problems affecting the public health, welfare and safety. The ordinance in question specifically prohibits inter alia trailer camps, motels, slaughter houses, glue works, and the like in industrial zones. A municipality is not required to permit a use which it reasonably believes should be excluded as repugnant to the general health, welfare and safety.
"We are not concerned with the wisdom or lack of wisdom of the particular amendment. The inquiry is whether or not it is within the scope of proper zoning regulation, and whether it is arbitrary or unreasonable. Thus viewed, we conclude that the separate classification of drive-in restaurants and the like 'where customers and patrons are served food, soft drinks, ice cream * * * for their immediate consumption * * * outside the confines of the building or structures in which the business is conducted * * *' was not arbitrary or unreasonable and that the exclusion of such type of business operation under the circumstances herein presented was within zoning power. Vickers v. Tp. Com. of Gloucester Tp., supra; Duffcon Concrete Products, Inc. v. Borough of Cresskill, 1 N.J. 509 (1949); Lacey v. Bd. of Adjustment of Hamilton, 4 N.J. Super. 422 (App. Div. 1949). Cf. Keystone Lunch, Inc. v. First Criminal Court of Newark, 22 N.J. Misc. 82, 35 A. 2 d 472 (Sup. Ct. 1944); Annotation, 'Zoning regulations as forbidding or restricting restaurants, diners, "drive-ins," or the like,' 82 A.L.R. 2 d 989 (1962).
"Plaintiffs also contend that the amendatory ordinance enacted after the entry of judgment ordering the issuance of a permit should not be given effect here. In brief, plaintiffs argue that, by the judgment of May 4, 1962, their rights to use the property for a drive-in restaurant became vested and may not be divested by subsequent legislation. In addition, plaintiffs argue that if a showing of some action in reliance on those rights is necessary as a prerequisite to vesting, their preparation and presentation of plans and, of more importance, their continued prosecution of the proceedings before the municipal boards and in court were, in the background of the municipal conduct, substantial acts made in reliance upon the existing ordinance and in pursuance of their right to a permit.
"We cannot agree. At the time plaintiffs commenced suit to compel the issuance of a building permit they were aware that many residents had objected to their proposed use of the premises as a drive-in restaurant and that an amendment to the zoning ordinance prohibiting drive-in restaurants had already been prepared. On May 4, 1962, when plaintiffs obtained a summary judgment requiring the issuance of a building permit, the amendment had already been introduced and passed first reading.
"A municipality's power to amend its zoning law is unquestioned. The right of a property owner under existing zoning regulations to make a particular use of his property at the time he applies for a building permit does not immunize him from valid subsequently adopted legislation. As stated in Sautto v. Edenboro Apartments, Inc., 69 N.J. Super. 420, 429-430 (App. Div. 1961):
'* * * where a property owner has been granted a building permit for a use valid when granted, the municipality nevertheless has a right to adopt later zoning or other police power legislation restrictive of the enjoyment of the permit already issued, but not where the permittee in reliance upon the permit has made substantial investment or expenditure, or where the extent of his reliance and the nature of the behavior of the parties show a balance of the equities strongly in favor of the permittee as against the general public represented by the municipal authorities.'
"In the instant case plaintiffs have failed to demonstrate a vested right or substantial reliance within the purview of the applicable cases. Tremarco Corporation v. Garzio, 32 N.J. 448 (1960); Van Corp. v. Mayor and Council of Borough of Ridgefield, 41 N.J. Super. 74 (App. Div. 1956), certif. denied 22 N.J. 227 (1956); Roselle v. Moonachie, 49 N.J. Super. 35 (App. Div. 1958); Sautto v. Edenboro Apartments, Inc., 69 N.J. Super. (supra).
"The judgment of the trial court is reversed and the matter remanded for the entry of a judgment in favor of defendants."