For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.
This case tests the validity of the use zoning of plaintiffs' 12-acre tract fronting on U.S. Highway Route 22 in the Borough of Mountainside, Union County. They were denied a recommendation for a variance by the board of adjustment, N.J.S.A. 40:55-39(d), to permit commercial utilization of the entire parcel instead of a limited business use in one corner allowed by an earlier variance and single-family residential use specified for the parcel by the current municipal zoning ordinance. This action in lieu of prerogative writ was then instituted in the Law Division to set aside the denial and, alternatively, to strike down the residential classification as invalid. In addition, the suit sought a declaration that particular provisions of the zoning ordinance imposing certain special regulations on the establishment of business and industrial uses, as well as comparable provisions of the planning board ordinance, constitute an improper method of land use control. The trial court decided all issues against plaintiffs. We certified their appeal on application while it was pending in the Appellate Division. R.R. 1:10-1A.
The thrust of the attack was a claim of unreasonable ordinance classification of plaintiffs' property for residential use and a contention that all highway frontage zoning in the
borough was void by reason of an illegal method of control whereby such frontage had been limited by the ordinance to residential use over a long period of years and indiscriminate individual deviations therefrom for business and industrial uses had been regularly allowed through administrative action. The additional assault on the special regulatory provisions of the current ordinances is broadly a part of the latter aspect of the attack. It is most important to keep in mind that plaintiffs sought relief not just with respect to that portion of their property close to the highway but for its entire depth of nearly 900 feet.
The basis asserted for the variance was, save in one respect relating to alleged peculiar physical characteristics of the interior of the property, the same as that grounding the claim of invalidity of the zoning classification. Consequently, plaintiffs confined their proof before the trial judge on this issue to the evidence they offered in the board of adjustment to support the variance application together with their cross-examination of opposing witnesses. The defense evidence substantially consisted of a live repetition of the opposition testimony before the board. In view of the broad sweep of the contentions, the geographical and historical facts of the community as well as of the particular property are essential for consideration of the issues.
Mountainside is situated some 12 miles southwest of Newark in the midst of what has become in the last 10 to 15 years a heavily developed ring surrounding the North Jersey central urban core. The ring development, residential, commercial and industrial, extends a considerably further distance. If it is thought of as a half wheel, the spokes are made up of several through highways passing through the ring and on into further parts of the State and beyond. Route 22 is one of the most important of these spokes, running from U.S. Route 1 near Newark Airport generally westerly through the densely developed areas of Union and eastern Somerset counties into west central New Jersey, central Pennsylvania and further. At least three quarters of Mountainside's four-square-mile
area lies on the southerly slope of the Watchung hills. Route 22, a divided highway with two or more traffic lanes in each direction, traverses the entire two and one-half mile width of the borough from east to west at the foot of the slope. The balance of the community extends south of this highway to the boundary of the Town of Westfield. Beyond the sizeable amount of county park lands, located both on the top of the ridge and bordering Westfield, the business development along Route 22 to be described, and a few neighborhood stores located some little distance south of the highway near the Westfield line, the land use is entirely that of high-class, single-family residences. These dwellings, now housing a population of about 6,500 which has increased more than five-fold since 1940, cover the hilly slope to a considerable extent and also occupy most of the limited amount of available land south of the highway. None front thereon except a small number which antedated the highway business development and still remain in residential use and two or three constructed since in connection with a business use on a particular property. The growth along the highway has not been residential but of a distinctly commercial character, for the most part unrelated to the single-family dwelling development of the remainder of the community, and in many respects typical of what has happened in numerous other New Jersey towns bisected by through highways where there has been no limitation of access thereto by abutting owners or from intersecting local streets.
The highway, first designated State Route 29, was constructed a little over 30 years ago. As distinct from a virgin right of way as in most of its other courses, through Mountainside it utilized the route of an existing county road known as Springfield Road, which ran from Scotch Plains on the west to the center of Springfield on the east. Mountainside was at that time really only a country village, off the beaten track, with a population of about 1,000. The land uses on Springfield Road, though it was the main thoroughfare, were mixed, but by no means dense -- a number of large and small
houses on large and small lots, some properties even devoted to small scale agriculture with roadside stands, a few scattered local stores and service establishments, community service buildings and a very considerable amount of vacant frontage.
The tract now owned by plaintiffs lay on the north side of the county road about equidistant from the Scotch Plains and Springfield borders and 1,500 feet or so east of the intersection of New Providence Road, which runs from Westfield over the hill to the Summit area. Its southwest corner was then, and now, occupied by an old mansion type structure, at that time used as an orphanage. The balance of the parcel was and still is vacant land. Slightly to the east of it on the county road was a church. Apparently to save the church from destruction in view of the need to widen the road for the new highway, the highway was divided near the orphanage structure for several hundred feet, the east bound lanes going south of the church on the right of way of the county road and the west bound lanes occupying a new road bed on a curve and rise between the church and the orphanage property. An island was thus created, known as Chapel Island, on which the church remained, and frontage of about 960 feet on the north side of the west bound lanes of the highway resulted for what is now plaintiffs' property. (Since the original construction, the State has acquired the easterly 600 feet of this frontage, to a depth of 100 feet, subject to a right of access to the interior across the same. This strip, like some others similarly acquired along other parts of the highway, has remained vacant and apparently it is intended that it always remain in that condition as some kind of a buffer.) The 12-acre tract thereby became trapezoidal in shape, with a depth of almost 900 feet and a rear line approximately 375 feet long.
The history of highway land use control in Mountainside is divided into two periods. The first commenced with the initial zoning ordinance adopted in 1933 and extended to late 1955, when the second and current period began upon the enactment of a new ordinance. [42 NJ Page 433] The pattern of purported regulation during the first period amounted, legislatively, to a classification of all highway frontage for single-family residential use only, save for a few ordinance amendments permitting commercial use on specifically described parcels and the creation in 1952 of a very small industrial zone at the extreme easterly end of the borough. The classification was completely without regard to existing nonresidential uses or any foresight or plan to deal with the pressures and changes which an interstate highway would inevitably bring. The ordinance limitations were coupled with an almost incredible, deliberate course of administrative action by the board of adjustment and governing body which can only be characterized as about as great a perversion of proper zoning as could be imagined. This was the indiscriminate granting of variances for nonresidential uses, with the result that the blanket residential classification meant practically nothing even if it could be conceived of as intrinsically valid in toto. The evidence shows that from 1945 until the passage of the 1955 ordinance 44 use variances for highway property were granted, and only six denied, for the whole gamut of uses which has become so distressingly familiar in almost solidly lining through highways in metropolitan and suburban areas -- gasoline stations, garages, restaurants, motor courts, bowling alleys, driving ranges, real estate and other offices, stores, show rooms and warehouses, service establishments, light manufacturing businesses, and so on ad infinitum, involving new buildings, enlarged use of existing business structures, conversion of former residences and the like. The record further shows that, almost without exception, these variances were also illegal (had they been seasonably attacked) because recommended by the board of adjustment without any findings whatever of justifying reasons or satisfaction of statutory criteria. The conclusion is irresistible either that allowance was dictated by whim, caprice or even favoritism or, at the very best, that the board of adjustment and the governing body had no conception of, or were improperly
advised as to, their legal duties, limitations and general responsibilities.
Among the variances so granted was one to McIntyre, plaintiffs' predecessor in title, in 1949 to use the former orphanage building on the southwest corner of the tract, including land on which it stands and surrounding it 362 feet front by 232 feet deep, for a retail furniture business. (This frontage roughly covers that between the westerly end of the property and the westerly end of the previously described strip owned by the State.) McIntyre conducted such a business until he sold the entire property to plaintiffs in 1955, who continued it thereafter. The business was, however, inactive at the time of trial, allegedly because of general modern inadequacy of the ancient structure.
It is apparent that by 1955 the municipality realized the tragic error of its ways and has since sought at least to bring those ways to a halt by the adoption of the new ordinance in that year and subsequent abandonment of land use control by administrative action. Between the end of World War II and 1955, the phenomenal increase in the use of motor transportation both for people and products, the population explosion with consequent vast development home building, and the movement of business and industry to sites out of the cities, had produced radical changes in the use of vast quantities of vacant land in the ring area. While established highways made most of this physically and economically possible, they had become badly overburdened and, especially by reason of the great number of business establishments constructed along them in suburban and even rural areas, they had to serve not only their primary function of moving traffic but also that of providing access to the abutting businesses, the customers and employees of which in turn added to the traffic volume. And most of these highway businesses, as in Mountainside, were intended to serve or employ not those living in the near neighborhood but rather people from beyond the community who found them conveniently accessible by motor. Route 22 had become, in its first 25 or 30 miles west of Newark,
one of the most overcrowded of these highways both in volume of traffic and number of commercial and industrial establishments lining its sides. There were few substantial gaps between the latter. It was and is an important interstate truck and passenger car route, a "rubber railroad" for commuters and others who had acquired homes in the broad area which it serves and a "Main Street" for the patrons of its businesses. Its traffic density and hazards and general ugly appearance, due in large measure to lack of appropriate planning and zoning controls in so many municipalities, are notorious. In Mountainside itself, traffic, increasing year by year, had reached a flow of 40,000 to 50,000 vehicles per day at the time of trial.
Consistent with this over-all pattern, by 1955 the easterly mile of Mountainside's highway frontage running from a short distance east of plaintiffs' property to the Springfield line, in which most of the previously described variances had been granted, was an almost indescribable hodgepodge of business enterprises of the type described. Few people still lived there, and it had admittedly lost all value for residential purposes. Little vacant property remained. The chairman of the planning board in his testimony called it "a commercial slum * * * a mess * * *." The 1955 ordinance divided this one mile frontage into two use classifications. The easterly part was placed in an industrial zone which included not only the highway frontage but a very considerable amount of land in the rear thereof on both sides of the road. The only uses permitted anywhere in this zone are non-nuisance manufacturing, processing, warehousing and allied activities. Retail and residential uses (except for a caretaker) are specifically prohibited. The westerly part of the mile which ran to the westerly end of this intensive commercial development, a point just short of Chapel Island and about 1,000 feet east of plaintiffs' property, was strip zoned by the ordinance in a restricted commercial zone, defined as "intended for the conduct of low-traffic generating, light manufacturing business and professional purposes." Only manufacturing, processing
and warehousing, professional offices and laboratories and warehouses are permitted. Retail sales and services and all residential uses are expressly forbidden. All of the numerous retail establishments along this mile which had been previously established by variance or other means were thereby rendered nonconforming. The evidence shows that the municipal thesis behind the restrictive zoning of this mile of frontage was that, while limitation to residential use could no longer be justified, the permitted uses would generate less additional highway traffic than retail businesses. The development therein since the 1955 ordinance has been in conformity with its limitations and no variances have been granted.*fn1
The remaining highway frontage from the restricted commercial zone west to the Scotch Plains line was retained in the single-family residential classification in 1955. The only additional permitted uses are public buildings, churches, general agricultural activities and professional offices and studios contained in a residence building.*fn2 This distance is rather naturally divided into easterly and westerly segments for our purposes.
The easterly segment, in which plaintiffs' property is located, runs for about 3,000 feet from the end of the restricted commercial zone to just beyond the New Providence Road intersection. It is the present character of this segment, coupled with its proximity to the intensive commercial development to the east and the general detrimental effect of the highway itself, which grounds plaintiffs' contention of intrinsic ordinance unreasonableness in limiting their property to
residential use (and the limited business use permitted by the 1949 variance).*fn3
This frontage underwent much less change in the 1945-1955 decade in comparison with the business development to the east, perhaps due to the fact of public ownership of a good part of the land, much of which has remained vacant. But by 1955 the great majority of uses were public or retail business, the latter antedating the construction of the highway or established by virtue of variances granted in the ten-year period. Only one private structure has been erected since, an office building replacing a deteriorated dwelling for which a variance was allowed in 1957. This has been the only private variance granted along the entire borough highway frontage since the 1955 ordinance. In 1945 there were perhaps a dozen dwellings in the stretch. Today only five remain which are used exclusively for residential purposes (out of a total of about 20 buildings). There has been no dwelling construction in the segment for many, many years.
At the time of the trial the south side of the highway showed the following land uses, running westerly from the end of the restricted commercial zone: opposite Chapel Island, a long strip of vacant county park lands, a retail liquor store with apartment above, the borough fire house, the borough hall, and two old dwellings used also as tourist homes; beyond Chapel Island, two homes, a dwelling property also used as a nursery, another home, a vacant state-owned tract, a long stretch of land occupied by a large public school and playground, and, at the southeast corner of New Providence Road, the rescue squad headquarters. At the southwest corner of the intersection, and for several hundred feet beyond, is a concentration of commercial activity -- a gas station which antedated 1933, the new office building previously referred to, a large roadside restaurant business which was also started
prior to the enactment of the first zoning ordinance, and a very substantial truck sales and service establishment which was the beneficiary of an admittedly ill-advised variance ten or more years ago. On the north side, again running westerly from the restricted commercial zone and opposite Chapel Island, we find a high bank of vacant land, 800 feet or so long and 100 feet deep, owned by the State (the rear of the houses in a development to the north is just beyond this strip), and the previously described 600-foot state-owned strip along a portion of plaintiffs' property; beyond Chapel Island, plaintiffs' furniture business in the old orphanage building, a house, a real estate office ...