For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. Opposed -- None. The opinion of the Court was delivered by Hall, J.
[58 NJ Page 311] This appeal devolves from a complex litigation arising out of the issuance of site plan approval and a building permit by the authorities of the Town of West Orange for the erection of a limited menu, fast service restaurant by intervenor McDonald's Corporation (McDonald) on lands leased by it from defendant Vogel in a commercial zone on Northfield Avenue in that municipality. Plaintiffs, neighboring residents, attacked the municipal action, claiming that fatal procedural irregularities vitiated the approval and permit and that a zoning ordinance provision prohibited outdoor consumption of food on the premises of a restaurant, which they asserted McDonald intended to permit, and thus precluded
a valid building permit. McDonald in turn sought a declaratory judgment that the ordinance provision is unconstitutional and contended that estoppel precluded plaintiffs' attack.
The trial court sustained the issuance of the approval and permit, declared the ordinance provision unconstitutional, and also found an estoppel against the municipality and plaintiffs. On plaintiffs' appeal, the Appellate Division, in an unreported opinion, affirmed the issuance of the site plan approval and building permit, but held the ordinance provisions, including a more specific use restriction enacted subsequent to the trial court decision, to be valid though not barring the building permit, found no basis for any estoppel, and imposed a condition upon McDonald's use of the premises.
McDonald, although successful to a large degree, appealed to this court, purportedly as of right, on the ground that a substantial constitutional question is involved, R. 2:2-1(a)(1), based on the alleged invalidity of the prohibitory ordinance provisions. It goes on to urge reversal of the estoppel aspect of the Appellate Division decision. Its entire argument makes it plain that it actually seeks an adjudication in this court that will absolve it in advance of construction of any future claim of zoning ordinance violation if patrons do consume food on the premises outside the restaurant building. Plaintiffs did not cross-appeal and urge only affirmance of the Appellate Division. They did, however, file a motion to dismiss McDonald's appeal for lack of a proper constitutional question, decision on which was held pending oral argument of the appeal. Determination of the issues thus tendered demands initially a more detailed recital of the facts and chronology of events.
In May 1968, defendant Vogel was, and had been for some time, operating an outdoor root beer stand on the premises in question. In that month he entered into a long term ground lease with McDonald, which expressly contemplated the demolition of the existing stand and the erection by McDonald of a "carry-out restaurant," as the
lease called it, with a large parking lot. Vogel warranted "that the use of the premises as a carry-out restaurant for the sale and consumption on the premises of food and nonalcoholic beverages will be a permitted use under the zoning classification applicable to the demised premises." McDonald obviously then had in mind a type of food service installation like hundreds of others bearing its name across the country, consisting of a building containing a counter for the sale and delivery of a limited line of food and beverages in disposable containers, for consumption while standing on the premises, in cars in the parking lot or at some location entirely off the premises. No tables for service or eating are provided in this type of operation.
At this time, by virtue of two zoning ordinance amendments, both adopted earlier in 1968, West Orange prohibited "outdoor retail businesses," which were defined (in the second amendment, which superseded the first and to which reference will hereafter only be made) as
A business conducted outside of the confines of a building which shall include but not be limited to a business where the customers or patrons are served food or beverage over a counter or bar, while seated or standing outside of the confines of a building in which the business is conducted. This shall also be construed to include and prohibit businesses which are so designed or conducted by means of site design or method of packaging for customers or patrons consuming any food or beverage in motor vehicles and outdoors on the premises, whether such food or beverage is dispensed inside or outside the confines of the building.
The zoning ordinance also required site plan approval by the Planning Board prior to the issuance of a building permit. This approval dealt not with the zoning propriety of the proposed use, but rather with the physical layout and location on the site of projected structures, parking area, curbs, sidewalks, storm drainage facilities, signs, exterior lighting, fencing, landscaping and the like.
In the summer of 1968 Vogel (who apparently acted for McDonald in all matters before the local agencies) submitted a site plan based upon the type of McDonald operation previously
outlined, which McDonald admits would have been banned by the quoted ordinance provision. This plan was withdrawn before action and one calling for a different kind of facility substituted. The new plan showed a larger building with provision within for tables to accommodate 60 diners, inside rest rooms and air-conditioning. The parking area showed 64 spaces for cars. The method of food service, however, still contemplated self-service at the counter in disposable containers. The Planning Board approved this site plan on September 4, 1968. Vitiating procedural irregularity was claimed by reason of an alleged improper publication of notice of the hearing thereon.
Vogel then sought a building permit from the town building department, which turned out to be a long and tortuous ordeal. He was first met with the requirement, said to be based on some general policy of the town, that he must demolish the operating root beer stand before the application would be considered. He did this, but still the permit did not issue, although he had been previously assured in writing, by defendant O'Boyle, one of the town's two building inspectors, that it would. There followed an inordinate delay, which, as the trial judge put it, "seems inexcusable in any kind of a well-managed community." The other building inspector, defendant Cunningham, had a hand along with O'Boyle, in the processing of the application. They generally worked at cross purposes, however. The Board of Adjustment, the town attorney and the Mayor were also brought into the picture at various times. The permit finally issued, over O'Boyle's signature, on April 17, 1969. The various participations of these officials in the treatment of the application formed the basis of plaintiffs' contention of invalidating procedural irregularities with respect to the permit.*fn1 It may
be noted that some of the delay was occasioned by concern on the part of certain municipal officials, based on the large number of parking spaces in relation to the number of seats within the building and on some unresponsive, if not evasive, answers by McDonald to a request for further information on the type of proposed operation, that the use would still result in the service of food for consumption in the parking area. Some of the town's officials asserted that such a result would make the entire operation a prohibited use under the 1968 zoning ordinance amendment and preclude the issuance of a building permit.
Plaintiffs, who had previously made known their opposition to the enterprise, started their suit in the Chancery Division shortly after the issuance of the permit, seeking to set aside the site plan approval and the permit and to enjoin any construction. (We pass the question, as did the trial court, that plaintiffs should first have appealed to the Board of Adjustment under N.J.S.A. 40:55-39(a) and, in the event of an unfavorable result there, then have brought their action in the Law Division as one in lieu of prerogative writ.) A preliminary injunction was issued restraining any action to implement the permit. The complaint sought to set aside the municipal action on the bases set forth in the first paragraph of this opinion, viz., vitiating procedural irregularities and zoning ordinance prohibition of the proposed use.
McDonald was permitted to intervene in the suit and asserted not only the validity of the approval and permit, but also, by way of separate defense, that all other parties were estopped from challenging them by reason of the written assurance that a permit would issue after demolition of the root beer stand and that the 1968 zoning ordinance use prohibition did not apply to or render unlawful the proposed operation or, alternatively, that the ordinance provision was unconstitutional. Affirmatively, by way of counterclaim against plaintiffs and a cross-claim against the municipal defendants, McDonald sought a declaratory judgment in its
favor covering substantially the same assertions it had made by way of ...