For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance, joining Part I of opinion and concurring in result only as to Part II of opinion -- Justice Hall. For reversal -- None.
[44 NJ Page 340] This case challenges the validity of provisions of the zoning ordinance of the Borough of Carteret which forbid plaintiff Tidewater Oil Company (Tidewater) from erecting and operating in the "Heavy Industrial B" zone a "tank farm" to store petroleum products for bulk sale, distribution and ultimate off-premises consumption. The nub of the claim is that this use is permitted in the "Heavy Industrial
A" zone, that uses more objectionable are allowed in the B zone and that the prohibition is therefore arbitrary and unlawfully discriminatory.
The trial court struck down the proscription as "not in accordance with a classification of land uses reasonably related to and in furtherance of the statutory zoning purposes." 80 N.J. Super. 283, 296 (Law Div. 1963). The sections in question were amended during the pendency of the borough's appeal to the Appellate Division. That court, reversing the determination of the trial court, found the ordinance as it then stood to be entirely valid. 84 N.J. Super. 525 (1964).
Plaintiffs appealed the judgment to this court without the grant of certification, asserting it to be a cause "involving a question arising under the Constitution of the United States or this State" and so entitled to further review as of right. N.J. Const. Art. VI, sec. V, par. 1(a); R.R. 1:2-1(a). Defendants' motion to dismiss the appeal on the ground that the issue does not fall within the proper scope of the quoted phrase was reserved for determination until argument of the appeal on the merits. This requires first attention.
The very limited provision for double appeals without leave arises as an aspect of the new judicial structure of this State created by the Constitution of 1947, which is based on the sound tenet of judicial administration that there should ordinarily be only one appeal as of right. Midler v. Heinowitz, 10 N.J. 123, 129 (1952). The exception of additional review in cases involving constitutional questions has to be based on the thinking that matters of interpretation or application of the organic documents of government and of fundamental rights and obligations warrant a second judicial look if the losing party wants it because they are intrinsically of basic importance. By the same token, the constitutional question should be a real and not merely a superficial one. Consequently this court determined in the early days of the new system that a constitutional question, in the sense intended
by the appellate jurisdiction section of the 1947 instrument, must be "substantial," Starego v. Soboliski, 11 N.J. 29, 32 (1952), cert. denied 345 U.S. 925, 97 L. Ed. 1356, 73 S. Ct. 784 (1953), and not "merely colorable," State v. Pometti, 12 N.J. 446, 450 (1953).
It is clearly not enough if the asserted question is only remotely or speciously connected to the constitution by the loose or contrived use of broad constitutional terminology. Shibboleth mouthing of constitutional phrases like "due process of law" and "equal protection of the laws" does not ipso facto assure absolute appealability. Otherwise every cause in which nothing more is really at stake than a claim of mere trial error, for example, could be twisted to authorize a second appeal as of right. 536 Broad St. Corp. v. Valco Mortgage Co., Inc., 5 N.J. 393, 395 (1950); Starego v. Soboliski, supra; State v. Caprio, 14 N.J. 64 (1953), cert. denied 347 U.S. 952, 98 L. Ed. 1098, 74 S. Ct. 677 (1954); State v. Greenberg, 16 N.J. 568, 571-72 (1954); State v. DeMeo, 20 N.J. 1, 5 (1955); Colacurcio Contracting Corp. v. Weiss, 20 N.J. 258 (1955); Klotz v. Lee, 21 N.J. 148 (1956); Essex County v. Hindenlang, 24 N.J. 517 (1957); State v. Schneider, 33 N.J. 451 (1960), cert. denied 365 U.S. 859, 81 S. Ct. 824, 5 L. Ed. 2 d 822 (1961); Amelchenko v. Freehold Borough, 42 N.J. 541, 545 (1964). In addition, there must appear indication of true merit from the constitutional point of view, i.e., that the issue tendered is not frivolous and has not already been the subject of a conclusive judicial determination. State v. Pometti, supra (12 N.J., at p. 450). See Camden County v. Pennsauken Sewerage Authority, 15 N.J. 456 (1954); Butler Oak Tavern v. Division of Alcoholic Beverage Control, 20 N.J. 373, 381 (1956); Fifth St. Pier Corp. v. City of Hoboken, 22 N.J. 326 (1956).
The plaintiffs' conclusional contention that the ordinance prohibition of the proposed use by Tidewater is unconstitutionally capricious and discriminatory is broadly cast in the familiar due process and equal protection concepts of the
Fourteenth amendment. But the supporting argument boils down, as in most cases of this kind, to a claim that, in this particular factual setting, the ordinance treatment is unreasonable because not within the purposes and essential considerations or the requirement of uniform regulations specified by the zoning enabling act as necessary to undergird valid local legislation. N.J.S.A. 40:55-31 and 32. While these statutory prerequisites have loose constitutional connotations, the fundamental question here resolves itself into a matter of application of statutory standards to a particular factual situation under long established principles. At this relatively advanced stage of the law of land use regulation, it will be the rare case concerned with the validity of use classification which will present an issue of sufficient constitutional involvement for purposes of the double appeal provision. See Vickers v. Township Committee of Gloucester Township, 37 N.J. 232, 234 (1962), cert. denied and appeal dismissed 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed. 2 d 495 (1963), and Morris v. Postma, 41 N.J. 354 (1964), where fundamental questions of the right to exclude common uses from an entire municipality were at stake. We recognize, of course, that new constitutional questions of substance may arise in a generally settled field of law. Also it should be noted that ...