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, ...