Michels, Morgan and Milmed. The opinion of the court was delivered by Michels, P.J.A.D. Morgan, J.A.D. (dissenting).
In this case we are called upon to consider the extent to which a municipality may regulate by ordinance adopted pursuant to the police power a previously declared nonconforming use of land.
Plaintiff Dock Watch Hollow Quarry Pit, Inc. (Dock Watch), the owner and operator of an open pit quarry located in Warren Township (township), brought the present action to invalidate an ordinance regulating quarries adopted by the township. Ordinance No. 69-8, as revised on September 19, 1974 by Ordinance No. 74-23,*fn1 declared its purpose to be:
A brief review of the factual context in which this appeal arises is helpful to the resolution of the many issues involved. The Dock Watch quarry is situated on approximately 20 acres of land. Quarrying has been conducted on the land since 1930, long before the adoption of the township's land use ordinance in 1952 in which quarrying on the land was forbidden. The quarry's status as a nonconforming use was declared, and the extent thereof defined, in prior litigation. See Moore v. Bridgewater Tp. , 69 N.J. Super. 1 (App. Div. 1961). In that case the operators of the quarry were held entitled to extract traprock and shale from the approximately 20 acres comprising the quarry, as against the contention that the nonconforming use was restricted to that part of the land being quarried at the time the applicable zoning ordinances were adopted.
Following a plenary trial in the present case the trial judge made the following factual findings which do not seem to be seriously disputed and which find ample support in the record. The quarry is the only one in operation in Warren Township and has been conducted on the land in question since 1930. Prior to 1970 the location of the boundary line between Warren and Bridgewater Townships was in doubt, and this uncertainty included that portion thereof which passed through the quarry property. Moore v. Bridgewater Tp., supra , considered this problem and its manifestations at length and concluded from the evidence there adduced that approximately 14 acres of the quarry were located in Bridgewater and the remaining six acres in Warren Township. See 69 N.J. Super. at 9.
In the early spring of 1971 both Warren and Bridgewater Townships, in an apparent effort to solve the problem created by divided jurisdiction over the quarry, passed a resolution petitioning the State Legislature to enact special legislation redrawing the boundary line between the two townships in such a way as to include all of the quarry
within Warren Township. A notice of intention regarding the proposed legislation was published by both townships in a newspaper of general circulation in Somerset County. The resolutions were forwarded to the Legislature and special legislation was passed by both houses and signed into law by the Governor on June 30, 1971. Thereafter, the Dock Watch quarry was entirely in Warren Township and subject to the regulatory ordinance adopted in 1969, portions of which are the subject matter of this appeal.
Dock Watch's business is a competitive one. Its principal competitor is the larger and more extensive Houdaille operation in Bridgewater Township, approximately three miles distant from the Dock Watch quarry. Before the change in boundary most of the quarry was controlled by the Bridgewater ordinance so that both it and its major competitor operated under the same regulatory restrictions. Since the boundary change the quarry has come under the jurisdiction of the allegedly more restrictive Warren Township ordinance, and Dock Watch contends that it will be forced to operate at such a competitive disadvantage that it may be forced out of business if the challenged ordinances are upheld.
The quarry has an elevation of approximately 270 feet at its present floor, and its highest elevation is approximately 550 feet. At present the quarrying operation has not gone below the level of the adjoining roadway to any real extent, but a good portion of the mountain within the quarry property above the roadway level has already been removed during more than 40 years of quarrying. The quarry is bounded by a brook and roadway on the easterly side thereof; the remaining three boundaries are in the portions of the mountain which have not yet been removed.
The general procedure used for obtaining materials from this open-pit type quarry is by means of drilling, blasting, crushing the dislodged material, sorting the crushed materials through a scalping screen, carrying it on conveyor belts to the storage areas, and finally loading it into trucks
for delivery to consumers. While most of the material is traprock, there are also deposits of shale, a softer form of rock which is mined by Dock Watch primarily for use as fill and which the trial judge found to have a retail value of $2 a ton. At the time of trial the traprock sold for between $2.50 and $3.50 a ton.
Two of the challenged provisions of the ordinance in question prohibit quarrying below the grade of the adjacent roadway and within a 50-foot buffer strip around the perimeter of the quarry property. The economic consequences to Dock Watch of the enforcement of these provisions were explored in extensive testimony during trial and the estimates thereof were subject to wide variation and considerable dispute. The trial judge found that the total value of the rock and shale deposits in the quarry, including that within the 50-foot buffer strip and that below grade to a depth of 150 feet, consisting of almost 20,000,000 tons, is approximately $50,000,000. The judge also found that deposits contained in the buffer area to grade are approximately 2,670,000 tons with a value of $2.50 a ton, or a total value of $6,700,000, and that the deposits outside the buffer area to grade are approximately 6,660,000 tons with a total value of $16,650,000. The deposits below grade to a depth of 150 feet, forbidden to be removed by the challenged ordinance, are approximately 10,287,000 tons with a value of almost $26,000,000; this valuation does not include any mining in the 50-foot buffer zone because of the necessity to bench and slope the area above grade.
The trial judge stressed the approximate nature of these figures and that the substantial dispute as to the value of the as yet unmined materials stemmed from the computation of the quantity of the available assets which could effectively, from both a legal and practical standpoint, be taken from the quarry. The township's expert stressed the legal requirements as well as the necessity for benching as the basis for his estimates, which were substantially less than those given by the quarry witnesses. For example, with
respect to the assets which could be extracted from the buffer strip to grade, the township's estimate was about one-third of that provided by the quarry's principal witness. The trial judge found it unnecessary to make any precise factual determinations as to the extractable quantity of assets within the buffer zone and below grade because, accepting the testimony of either side, the quantity was substantial and the best estimate as to the amount thereof probably lay somewhere between the two offered estimates. He did, however, find that Dock Watch's total present investment in the quarry is about $2,000,000 -- $1,000,000 for the land and another $1,000,000 for the equipment and other non-real estate assets. The judge also found that the quarry is not reasonably suited for residential or agricultural use and that its highest and best use, "and indeed its only reasonable use," is as a stone quarry.
Warren Township has a present estimated population of about 10,000; in 1980 its population is expected to be about 17,000. Within a radius of one-half mile from the quarry there are about 130 homes, a population of about 550-600 and one school. The estimated number of school children within that one-half mile radius is 275, and within one mile of the quarry an estimated 600 children. Within 2,000 feet of the quarry there are approximately 100 homes and 175 school children.
Considerable attention was given to the problem of dust and noise emissions from normal quarry operations because some of the challenged provisions of the ordinance were designed to minimize these factors. Since the portions of the ordinance dealing with dust control are no longer in dispute by representation of counsel, there is no need to discuss these factors in detail. Noise emissions do, however, continue to provide the basis for the attempt to regulate hours and days of operation and therefore continue as a relevant consideration on this appeal. The trial judge concluded that the operation of the quarry did not constitute a nuisance, although such a finding was, strictly speaking,
irrelevant to the issues presented. He also found that the levels of dust and noise emissions have not increased since Moore v. Bridgewater Tp., supra , decided in 1961. The court there, too, held the operations not to constitute a nuisance.
The trial judge noted that operation of the Dock Watch quarry is necessarily, by the very nature of the business, attended by the emission of noise and dust which causes some "comparatively minor annoyance" to surrounding residences within a distance of 1,000 and perhaps up to 2,000 feet. The judge accepted the testimony of Dock Watch's planning expert with respect to noise as being the most credible. Close to the quarry he characterized the noise emanating therefrom as very loud and similar to the constant passing of a railroad train. (This judge on a visit to the premises found this characterization accurate.) He testified that at more distant locations the noise level was similar to the sound of distant heavy highway traffic, and that at about 1,400 feet the noise was almost completely inaudible.
Before venturing into a consideration of the ordinance's validity, we will first address Dock Watch's challenge to the legislation redrawing the boundary line. As previously noted, this boundary line had long been in dispute and the administrative and legal difficulties of dealing with a quarry in two municipalities became manifest. See Moore v. Bridgewater Tp., supra. The assailed legislation accorded with the desires of both affected municipalities. The reason for the quarry's challenge to this boundary line change lies in the fact that it resulted in placing the quarry in Warren Township and thus subject to that municipality's more restrictive regulatory ordinance, while leaving the Houdaille quarry, Dock Watch's chief competitor, subject to the less restrictive ordinance of Bridgewater Township. The quarry admits that had the boundary line change placed it in Bridgewater, it would have had no complaint since
then it would have been operating under the same regulatory restrictions as control Houdaille. It suggests that the boundary change was accomplished as part of a conspiracy to drive it out of business. No evidence supports this contention, the trial judge declined to accept it, and we agree.
Dock Watch next contends that the legislation constituted a special law regulating the internal affairs of the municipalities involved, in violation of N.J. Const. (1947), Art. IV, § VII, par. 9, subsec. 13. Although any change in existing municipal boundary lines may certainly be said to affect the internal affairs of the municipalities concerned, it may not be said to "regulate" them. See Miller v. Greenwalt , 64 N.J.L. 197, 199 (Sup. Ct. 1899), aff'd 64 N.J.L. 722 (E. & A. 1900) wherein an earlier but similar constitutional provision was so construed. See also, Botkin v. Westwood , 52 N.J. Super. 416, 433 (App. Div. 1958), app. dism. 28 N.J. 218 (1958).
Dock Watch's contention that the statute deprived the citizens of Bridgewater of equal protection of the laws is also without merit. Neither Bridgewater nor its citizens have challenged this boundary change. Dock Watch lacks standing to make these arguments on behalf of others who do not appear aggrieved. At any rate, the contention that the boundary change violates either federal or state equal protection provisions is without substance, and the trial judge correctly so held. The boundary line change ended the problems associated with long-standing uncertainty with respect to jurisdiction over the quarry. Convenience dictated that the quarry be located entirely in one or the other municipality. The fact that Warren Township was chosen rather than Bridgewater, which Dock Watch preferred, constituted an insufficient basis for the challenge to this enactment.
Several broad principles of general import provide the legal backdrop against which the challenge to the provisions
of the township ordinance must be considered. There can be little question but that the express grant of general police powers to municipalities (N.J.S.A. 40:48-2) encompasses the authority to enact an ordinance reasonably regulating the business of quarrying. See Cranberry Lake Quarry Co. v. Johnson , 95 N.J. Super. 495, 511-515 (App. Div. 1967), certif. den. 50 N.J. 300 (1967); Fred v. Old Tappan Mayor and Council , 10 N.J. 515, 521 (1952). With respect to the exercise of the police power generally we observe that
The presumption of reasonableness and validity which attends all municipal enactments (Collingswood v. Ringgold , 66 N.J. 350, 358 (1975); Moyant v. Paramus , 30 N.J. 528, 534 (1959)) can only be overcome by clear and compelling evidence demonstrating its unreasonableness. The burden of proof in that regard rests upon the party assailing the validity thereof. Rudderow v. Mt. Laurel Tp. Comm. , 121 N.J. Super. 409, 415 (App. Div. 1972). The court's role in reviewing ordinances is narrow and limited. We do not judge the wisdom thereof, but act only if the presumption of its validity is overcome by an affirmative showing of unreasonableness or arbitrariness. If the issue is debatable, the ordinance must be upheld. Kozesnik v. Montgomery Tp. , 24 N.J. 154, 167 (1957).
Although the foregoing principles have attained axiomatic status, they do not purport to deal with the central
legal issue projected by this case: the extent to which a municipality, through the exercise of the police power, may regulate a business which endangers the environment and adversely affects the health and safety of the community notwithstanding the business' status as a nonconforming use under N.J.S.A. 40:55-48. Dock Watch's quarrying operation was declared a nonconforming use and it was permitted to extract materials to its boundary lines. Moore v. Bridgewater Tp., supra. The challenged ordinance regulates the operation of the quarry. The regulations prohibit quarrying below the grade of the adjacent roadway or within a 50-foot buffer zone measured from the outer perimeter of its property. However, although the fact that the quarry is a nonconforming use may protect it from later zoning restrictions, its status as such does not render it immune from reasonable regulations pursuant to the police power in the interest of the public health, welfare and safety. Nonconforming uses are clearly subject to such police power regulations, including those designed for the preservation of the environment and the protection of ecological values. See Goldblatt v. Town of Hempstead , 369 U.S. 590, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962); Cranberry Lake Quarry Co. v. Johnson, supra , 95 N.J. Super. at 523; Shaw v. Byram Tp. , 86 N.J. Super. 598, 604 (App. Div. 1965), certif. den. 45 N.J. 35 (1965); Town of North Hempstead v. Colonial Sand & G. Co. , 14 Misc. 2d 727, 178 N.Y.S. 2d 579, 583 (Sup. Ct. 1958); Lizza & Sons v. Town of Hempstead , 19 Misc. 2d 403, 69 N.Y.S. 2d 296, 298 (Sup. Ct. 1947), aff'd 272 App. Div. 921, 71 N.Y.S. 2d 14 (App. Div. 1947). See also 2 Anderson, American Law of Zoning , § 11.66 (1968).
The challenged provisions of the quarrying ordinance stricken or modified by the trial judge, from which action the township takes the present appeal, concern (A) requirements
of site reclamation, and posting of a bond assuring performance of such reclamation requirements; (B) restrictions on hours of operation; (C) restrictions on days of operation; (D) restrictions on quarrying below grade of adjoining property and road, and within a 50-foot buffer area; (E) limitation of area on which quarry products and equipment may be stored; (F) regulations as to how and when blasting is to be conducted, and (G) the requirement for the planting of landscape screening. The details of these regulations ...