Conford, Foley and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
The Tewksbury Board of Adjustment appeals from a decision of the Law Division which vacated certain conditions which the board had imposed in granting an application of the plaintiffs for a special use permit under the local zoning ordinance for the construction and operation of a bituminous concrete plant. The Law Division held the plaintiffs were entitled to the permit free from the conditions, the latter (except for four not challenged in the action) being characterized by the court as arbitrary and unreasonable.
The present controversy concerns 6.42 acres of a much larger tract of land where for a long time plaintiff Houdaille has been operating a stone quarry. The concrete plant was to be operated by plaintiff Allied under a five-year lease from Houdaille of the smaller tract. The plant is essentially mobile and is to be transferred from another operating location out of the State.
The property in question is in a Mining (M) District of the municipal zoning ordinance. At the time of the application to the board the ordinance provided in section 4:6-2 that in an M district certain uses would be permissible, but only as "a special permit use," one being (b):
"Buildings, machinery and other facilities for the manufacture of prestressed concrete, bituminous concrete, dry concrete mixes and other concrete products, provided that:
i. A buffer strip, not less than five hundred feet in width, shall separate such buildings and uses from any agricultural or residential use within the Mining District, or from the boundary line of any district abutting the Mining District, whichever is closer to such buildings and uses;
ii. All the applicable performance standards of Article V and the Appendix shall be complied with fully as a condition to the continuance of such operations."
Article V of the ordinance requires that every industrial or mining use or one conducted under a special use permit conform to the "applicable performance standards" set forth in the Appendix. The latter contain detailed criteria governing "Fire and Explosion Hazards; Fume and Gases; Disposition of Liquid or Solid Wastes; Smoke; Fly Ash; Dust; Noise; Vibration; Glare; Heat; and Radiation."
After an extended series of hearings by the board, including expression of considerable local opposition based on the anticipated failure of plaintiffs to comply with the performance standards and fear of effect of the new operation on local health and welfare, the board rendered a 3-2 decision that the "applicant has shown that it can comply with the ordinance standards specified" in the ordinance and that the permit should be granted, subject however to 14 stated conditions, 10 of which have been contested by plaintiffs below and here. The disputed conditions are as follows:
"(1) That the applicant and Barrett Division of Allied Chemical Company accept this permit within 60 days from the date hereof, and agree to comply with said restrictions and limitations.
(2) That said plant be operated no more than 200 days per year, five days per week; that no operation on Saturday and Sundays [sic].
(3) That the operation of said plant shall be only during daylight between the hours of eight and five p.m.
(5) That the tests shall be made * * * no more than twice a year by a laboratory selected and retained by the Township to show complete compliance with the performance standards of said ordinance and these restrictions * * *. The cost of said test shall be paid by the applicant.
(6) That in case of any complaints by the Township or the State of New Jersey of breach of the performance standards of this ordinance, tests shall be made as outlined in 5 above for the account of the applicant to determine compliance.
(8) That applicant shall use only Rockaway Road from County Road 523 as access to the plant, and said Rockaway Road shall be maintained by the Township, and the cost of ...