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.
[55 NJ Page 365] These cases once more involve the question of the effect of local zoning regulations upon public utility
installations. See In re Application of Hackensack Water Co., 41 N.J. Super. 408 (App. Div. 1965); In re Public Service Electric & Gas Co., 35 N.J. 358 (1961); In re Monmouth Consolidated Water Co., 47 N.J. 251 (1966). Cf. In re Public Service Electric & Gas Co., 100 N.J. Super. 1 (App. Div. 1968).
The defendant was convicted in the Municipal Courts of the Boroughs of Shrewsbury and New Shrewsbury for violating the zoning ordinances thereof in connection with its erection of a bulk electric transmission line running through the municipalities. The Monmouth County Court affirmed, imposing fines of $100 plus costs in each case. In the Shrewsbury case, the subsequent appeal to the Appellate Division was certified before argument there on application of the defendant, R. 2:12-2(a); the appeal in the New Shrewsbury case was certified on our own motion, R. 2:12-1. An identical issue is presented in each case.
The stipulated facts should be briefly summarized. The transmission line in question is 6.9 miles long running from a present substation in Colt's Neck to one in Red Bank, carrying conductors of 230,000 and 34,500 volts for ultimate distribution at lower voltages of additional electrical power to customers in a fast growing area. There has been no suggestion that the facility is not a much needed one. It traverses five municipalities. 18,000 feet of it are in Shrewsbury and 12,000 in New Shrewsbury. We understand that generally the line and the supporting structures are located upon or adjacent to a railroad right-of-way. The structures supporting the conductors are H-frames ranging in height from 32 feet to about 149 feet. In addition to the power lines, they are also designed to carry wires for proposed electrification of the railroad.
Under the Shrewsbury ordinance electric transmission lines are not a permitted use anywhere in the borough. Where the line runs on the railroad right-of-way the land is either unzoned or zoned for residential use; where it runs adjacent to the right-of-way, the land lies within an industrial
zone. Most of the frames will exceed the maximum height of structures permitted by the ordinance, by virtue of an amendment adopted about the time construction commenced and obviously passed to affect this particular installation. The ordinance requires a building permit before any structure may be erected, a prerequisite for which, as to certain of the zones involved, is site plan approval by the Planning Board following compliance with performance standards set forth in the ordinance. The local building code excepts electric utility structures from its provisions and contains no specifications for their construction, matters which we understand are quite properly covered by regulations of the Board of Public Utility Commissioners. While the complaints alleged violation of the ordinance without having first obtained a building permit, it is apparent that, because of the use, height and site plan approval provisions, a permit could not issue unless defendant first obtained a variance from the Board of Adjustment.
Under the New Shrewsbury ordinance, electric lines are not a permitted use in the zones through which this line would pass. A building permit and site plan approval are likewise required before erecting a structure. This borough's building code also excepts electric utility structures. The complaint alleged that defendant "did change use of lands for a non-residential use without site plan approval" by commencing erection. Again, apparently site plan approval could not be obtained here without a variance.
N.J.S.A. 40:55-50 of the zoning law reads as follows:
"This article ["Zoning"] or any ordinance or regulation made under authority thereof, shall not apply to existing property or to buildings or structures used or to be used by public utilities in furnishing service, if upon a petition of the public utility, the board of public utility commissioners shall after a hearing, of which the municipality affected shall have notice, decide that the present or proposed situation of the building or structure in question is reasonably necessary for the service, convenience or welfare of the public."
Admittedly defendant did not apply for such relief prior to commencement of ...