For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For reversal -- Hall. The opinion of the court was delivered by Schettino, J.
Plaintiff, the Garden State Racing Association, sought to enjoin defendant, Cherry Hill Township, from enforcing an ordinance which provides for the licensing of parking lots, and to have the ordinance declared invalid, at least as applied to plaintiff. The trial court upheld the ordinance and refused plaintiff's requests for relief. We certified plaintiff's appeal on our own motion before argument in the Appellate Division. R.R. 1:10-1(a).
Plaintiff holds a horse racing permit under N.J.S.A. 5:5-22 et seq., and has operated a track in Cherry Hill Township for more than 20 years. In spacious lots adjacent to the track, plaintiff provides parking facilities at charges of $.50 to $1.50 per car. The parking fee is in addition to the charge for entrance to the track itself. The parking areas are located outside the entrance gates to the racetrack proper where the admission fees are collected.
In the vicinity of the track, others are also in the business of providing parking facilities for a fee. Plaintiff also owns and operates a large hotel-restaurant within a short distance from the track.
In 1942 the defendant township adopted a parking lot ordinance establishing annual license fees which ranged from $1 to $100 depending on the capacity of each individual parking lot. Plaintiff fell into the $100 category and apparently paid the annual fee from 1942 through 1962 without complaint.
On April 23, 1962 the township adopted another parking lot licensing ordinance, No. 327, which imposed annual fees of $10 to $100 depending on lot capacity, plus an additional five cents for each vehicle parked. The only regulatory portion of the ordinance provided:
"Each applicant for a license hereunder shall submit to the Township Chief of Police a scale plan of the property to be licensed showing the number and location of each parking space and the entrance and exit locations. The Chief of Police * * * shall * * * forward the plan to the Township Clerk with his approval unless the plan presents a hazard to the walking or driving public, a hazard to
the occupants or any facilities on the property, or undue hindrance to passage of emergency or fire equipment. The plan shall remain on file with the Township Clerk during the term of the license and no vehicles shall be parked except in accordance therewith."
After the passage of this ordinance, plaintiff brought the present action; initially obtaining a temporary restraining order against the township, and later a restraining order pending final disposition. Both parties then brought cross motions for summary judgment which were denied by the Chancery Division. In denying the motions the trial court expressed doubt as to whether the ordinance was valid in that there appeared to be no correlation between the cost of regulation and the amount of money to be realized from the license fees. However, the court permitted the pleadings to be amended in order that the issue would be properly before it. Plaintiff thereafter amended its complaint to embody the trial court's suggestion that there was no reasonable relationship between the amount of the license fee and the costs of regulation. Before trial, however, defendant township adopted an amendatory ordinance, No. 356, which added the following regulatory measures to those quoted above:
"(a) All licensees shall have a sufficient number of guards or attendants on duty to control all entrances or exits at all times during which vehicles are parked, for the purpose of limiting the improper removal of vehicles and directing the traffic flow, unless at each entrance * * * notice is prominently displayed * * * that the facility will be unattended during certain specified hours. (b) All licenses * * * [operating] during the usual hours of darkness shall provide adequately lighted pedestrian walkways * * * for the safety of patrons. (c) All licensees who operate parking lots shall maintain the same except for the period of six hours after * * * any snowfall, in such a manner that the * * * surface shall be smooth, rut free and sufficiently hard surfaced that no vehicles shall become mired or stuck. (d) All licensees shall * * * keep on file with the Clerk * * * certificate evidencing the licensee's procurement of public liability and property damage insurance with minimum coverage of $100,000 for each person and $300,000 for each accident."
In the pretrial order and at trial, the court treated this ordinance in conjunction with No. ...