Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Kilkenny, J.A.D.
New York Central Railroad appeals from a dismissal without prejudice of its application to the Board of Public Utility Commissioners for an order under R.S. 40:55-50 that the zoning ordinance of the Borough of Ridgefield should not apply to the railroad's contemplated use of its existing property in that municipality.
By order of this court, two actions against the railroad now pending in the municipal court of Ridgefield for alleged violations of the local zoning ordinance were consolidated with the basic appeal so that we might review at the same time the validity and applicability of the challenged ordinance and thus, possibly, make a single disposition of all matters in issue, involving as they do common questions of law.
The railroad owns a freight yard in Ridgefield, adjacent to its tracks and facilities there, known as Bellman's Yard.
Though the yard can handle freight generally, its main use since the fall of 1961 has been the handling of new automobiles shipped by rail to that point on railroad flatcars of the bi-level and tri-level type, each carrying from 12 to 16 automobiles. The automobiles are not crated. They contain a small quantity of gasoline so that they may be taken off the railroad cars on ramps, sorted, washed, and reloaded within a matter of a few days on highway automobile carriers for delivery to consignees. On the present eight-acre area used for this purpose, about 1,000 new automobiles are present each day, those moving out from day to day on the highway carriers being replaced by others arriving on railroad cars.
The volume of this railroad business has been on the increase at this yard. In January 1962 the railroad handled 318 carloads monthly at this point. By June 1963 that figure had increased to 1,231 carloads. The railroad can get more of this business from other automobile manufacturers, if it will pave additional areas in this freight yard. The companies shipping their new automobiles require that they be placed on paved land. This additional business would bring "over a million dollars of revenue to the railroad," according to Donald Chickering, manager of the railroad's "Automobile Industry Services."
Bellman's Yard is more than half a mile from any residential areas of Ridgefield, being separated from these areas by a substantial portion of the Industrial F district, as well as by Manufacturing E district and Business D district. This freight yard is in Industrial F district, a flat swampy area through which several shifting creeks run. On built-up stretches rising from the bulrushes and mire, the railroad tracks and the New Jersey Turnpike traverse the swamp. A generating station of the Public Service Electric and Gas Company is nearby the area in question and power lines run criss-cross over this industrial district. The terrain is not generally adaptable to the construction of industrial establishments, except at great expense. The area is very suitable for the use to which it is being put -- a railroad freight yard.
The freight yard is presently equipped with a variety of facilities required for transferring autos from rail cars to highway carriers. There are side-tracks and yard tracks. Contiguous to the tracks, there is paving. Embedded in the paving are rails for the guidance of movable ramps used to take autos off the rail cars. Some areas of the paving, used for driving autos onto trucks, are pitched by grading fill material to a height of about three and one-half feet and butted off at the high end with stacked railroad ties. There is a building where Central's personnel works, and part of which is used to wash autos before loading them on trucks. The highway carrier personnel also use the building, which is equipped with telephones and toilets. In and around the paving there are a light tower, poles and power lines, and various fences and gates.
In order to expand its operation at Bellman's Yard, the railroad decided to double the acreage now used in this project, so that 2,000 automobiles could be placed in the freight yard while waiting for the highway carriers to make pickups there for delivery to the consignees. To this end it applied to the borough building inspector in May 1963 for a building permit to pave the required additional acreage. The permit was denied on the ground that the existing use was contrary to the provisions of the zoning ordinance and such use might be continued to the extent that it was a nonconforming use, antedating the zoning ordinance, but could not be enlarged.
Instead of appealing to the local board of adjustment, the railroad, pressed to meet a deadline set by the auto manufacturers, decided to apply and did on July 15, 1963 apply to the Board of Public Utility Commissioners for an order, pursuant to R.S. 40:55-50, declaring that the zoning restrictions should not apply to the railroad freight yard and its proposed enlargement. After a full hearing, the Board entered an order on August 8, 1963, dismissing the railroad's application "without prejudice," upon its finding that the proofs did not establish that "the present or proposed situation
of the building or structure in question is reasonably necessary for the service, convenience or welfare of the public."
The Board of Utility Commissioners is authorized by R.S. 40:55-50 to decide, after hearing held, that a zoning ordinance shall not apply to existing property or to buildings or structures used or to be used by public utilities in furnishing service, if it finds that the "proposed situation of the building or structure in question is reasonably necessary for the service, convenience or welfare of the public."
Meanwhile, on July 25, 1963, the railroad had applied for and obtained a building permit for land clearing and paving. Ridgefield restricted this permit by providing: "No cars to be use [sic] on Paving." The railroad subsequently completed the additional paving, but Ridgefield maintains that the new paving may not be used for the placement thereon of these new automobiles being transported under this railroad-highway carrier arrangement. Ridgefield relies upon a provision in its zoning ordinance, Article IV, section 8.3(i), which expressly prohibits in Industrial District F, wherein this freight yard is located, the use of property for "outdoor storage of motor vehicles, trucks, trailers and flatcars." That same prohibition applies impliedly in the other zones of the municipality where such a use is not listed among the only permitted uses in those zones.
The chief of the Ridgefield police department filed a complaint against the railroad on September 17, 1963, charging it with using its property in Ridgefield in violation of "Ridgefield Zoning Ordinance No. 691, Section 3, subsection 8.3(I)." This is the section prohibiting "outdoor storage of motor vehicles" in Industrial District F. Later, on October 2, 1963, the assistant building inspector of Ridgefield, filed another complaint, charging that the railroad "did construct and create a structure at the property known as Bellman's yard without obtaining a permit all of ...