For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For affirmance -- None. The opinion of the Court was delivered by Jacobs, J.
The Appellate Division, in an unreported per curiam, affirmed the trial court's summary judgment in favor of the defendant Edison Park Development Corp. We granted certification on the plaintiffs' application. 59 N.J. 287 (1971).
Edison Park Development Corp. is a long-term lessee of the 24.5 acre Wiesenfeld tract in Edison Township. The tract is somewhat irregular in shape and has a frontage on the northbound lane of United States Highway Route 1. Although it is wholly within Edison Township its northeasterly side line coincides in part with the border between Edison and Woodbridge Townships. The uses on the Woodbridge side are wholly residential. The area to the south in Edison Township is also wholly residential and is known as "Heights of Edison." The tract is in a general business zone in which retail stores are permitted. With a view towards development, Edison Park entered into a lease dated April 7, 1969 with the defendant-intervenor Mikemitch of New Jersey, Inc. The lease contemplated that Mikemitch would operate a substantial shopping establishment or center to be known as "Modell's Shopper's World."
Edison Park and Mikemitch engaged an architect who prepared plans for the large building which would house
Modell's Shopper's World. The plans included a hundred-foot buffer strip between the Edison Park property and the residences in the Heights of Edison but contained no buffer strip between the property and the residences in Woodbridge though the rear property lines of those residences directly abutted the Edison Park property. Apparently Edison Park and Mikemitch entertained the notion that the requirement for a hundred-foot buffer strip, found in Section 13-G of Edison's Zoning Ordinance, was intended to protect only the nearby residents within Edison Township and not the nearby residents within the adjacent Township of Woodbridge. Section 13-G reads as follows:
Buffer Strip. The owner of a lot or parcel of land having an area in excess of ten acres and upon which is to be built one or more retail stores shall provide a buffer strip one hundred feet in depth along side lot and rear lot lines adjacent to residential uses or zones. The buffer strip shall be continued in its natural state, if adequate, or the owner shall furnish additional suitable planting so as to provide an adequate screen to light and noise that may emanate from the business use or uses.
On July 30, 1970 a building permit was issued to Edison Park authorizing the construction of the building in accordance with the site plan prepared by the architect. However, on October 14, 1970 the Township Attorney advised that the site plan did not comply with Section 13-G in that it did not provide for a hundred-foot buffer strip at the northeasterly side adjacent to the Woodbridge Township line. His view was that the buffer strip was required to protect adjacent residents whether they be Edison residents or Woodbridge residents. In the evening of October 14, 1970, the Edison Township Council voted to rescind the permit which had been issued to Edison Park, and the Building Inspector addressed a letter to Edison Park advising that the permit had been issued through inadvertence and was rescinded.
During the afternoon of October 14, 1970, the plaintiffs filed their complaint in the Law Division seeking to have the permit vacated and to enjoin any action pursuant to it.
The plaintiffs were nearby residents from Woodbridge Township and an association of Edison Heights residents. The defendant Edison Park filed an answer and cross-claimed against the Township of Edison and its Building Inspector James Rossi who, in due course, filed their answers to the complaint and the cross-claim. Mikemitch of New Jersey, Inc. was permitted to intervene and it filed an answer as well as a cross-claim against Rossi and the Township. Thereafter Edison Park moved for summary judgment and on February 4, 1971 its motion was granted by the trial judge in a letter opinion which had the following to say on the crucial issue as to the meaning and applicability of Section 13-G:
At first blush the position urged by the plaintiffs and the Township would appear to be correct. There is nothing in this section to suggest that any distinction was intended between the degree of insulation to be afforded in-township residential uses and out-of-township residential uses. Considering the general proposition of law that a township may not enact zoning legislation without regard to its effect upon abutting lands in a neighboring municipality one could well take the language of this section to mean that the buffer requirement was universal and without regard to whether a property line coincided with the boundary line of a neighboring municipality in any degree. However, a reading of the entire ordinance as a whole leads to a different conclusion.
The trial judge, stressing that in many of the other provisions in the ordinance dealing with buffer strips the draftsman had included explicit language to the effect that the buffer shall be provided along adjacent residence zones within Edison and adjoining communities, concluded that the omission of such explicit language in 13-G indicated an intent to confine its application to Edison Township residents. He expressed the view that "if the framers wanted to extend the benefit to the adjoining Woodbridge residential use they would have plainly so stated" as they did in other instances. The Appellate ...