Sullivan, Carton and Halpern. Carton, J.A.D. (concurring in result).
This appeal, by the Township of Princeton, in a zoning case arises out of a long-term ground lease entered into between plaintiff, as owner of a five-acre tract of land situated in the Township, and the United States of America (Post Office Department). The lease recognizes that the Government intends to assign the lease to a "tenant" for the construction on the demised premises of a post office and incidental facilities according to the building and design requirements of the Government which will then lease back the premises.
The tract is located in an area zoned as "engineering and research" by the Township. Following the denial of plaintiff's application for municipal approval of the proposed post office facility (plaintiff sought alternatively a use variance, a special permit, or a variance for the proposed use under the lease), the instant suit was filed seeking a reversal of the denial of the application. By the second count of the complaint, plaintiff sought a declaration that the establishment of the general post office facility will, for the entire period of time it is used for that purpose, be immune from the Township Zoning and Land Subdivision Ordinances.
After issue was joined, the trial court granted plaintiff's motion for summary judgment on the second count of the complaint, the court holding that the United States Government
"whether as owner or lessee, is immune from zoning ordinances." The court's opinion is reported at 104 N.J. Super. 180.
On this appeal the Township concedes that if the United States Government owned the tract in question, its establishment of a post office facility would be immune from the Township Zoning Ordinance. However, the Township argues that the Government's mere lease of the tract, even for post office use, cannot confer immunity on it.
We do not agree and affirm the judgment herein substantially for the reasons expressed in the trial judge's opinion.
In view of the ruling, we find it unnecessary to consider whether or not plaintiff's application for a use variance or a special permit should have been granted.
CARTON, J.A.D., (concurring in result). In my view, the requested variance should have been granted. However, I question the correctness of the conclusion implicit in the judgment affirmed by the majority that a private owner may invoke governmental immunity from local zoning ordinances by leasing property to a superior governmental agency.
Plaintiff, as owner of a five-acre parcel on Harrison Street North in Princeton Township, had applied for both a hardship variance from the minimum width requirement and a use variance to permit the establishment of a United States post office facility in the Engineering Research District.
The voluminous proofs before the board of adjustment are fully summarized in nearly 100 pages of official minutes, taken at six separate hearings in 1967. However, the salient ...