On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Sullivan, Schreiber and Pollock. For reversal -- Justice Pashman. The opinion of the Court was delivered by Schreiber, J. Pashman, J., dissenting.
Plaintiff Quick Chek Food Stores sought a declaratory judgment that an ordinance of the Township of Springfield mandating closing hours for businesses in certain parts of the municipality was an unconstitutional exercise of the Township's police power. The trial court in a written unreported opinion rejected the challenge. The Appellate Division affirmed substantially for the reasons set forth in the trial court's opinion. We granted plaintiff's petition for certification. 81 N.J. 351 (1979).
At the trial plaintiff produced two witnesses, Robert Hart, plaintiff's vice-president in charge of operations, and Robert Weltchek, a township committeeman. The township engineer, Walter Kozub, testified for the defendant. The only evidence other than the testimony of these witnesses consisted of the zoning map and the ordinance under attack.
A summary of the pertinent evidence is as follows: Plaintiff, a New Jersey corporation, owns and operates a chain of 66 convenience food outlets, 63 of which are in New Jersey. Their business hours extend from 8 a.m. until midnight, though most of their sales occur after 6 p.m. Generally speaking plaintiff selects its locations after making traffic and customer counts at the proposed site. However, no such information was offered with respect to the site in question on Mountain Avenue in Springfield.
After plaintiff filed an application with the Springfield Township Planning Board for site plan approval of a building which was to be constructed for plaintiff's use public opposition developed.*fn1 This opposition was brought to the attention of the Township Committee which subsequently considered and adopted an ordinance to limit the hours of night operation of commercial establishments.
The ordinance provided that no retail establishments of any nature, other than pharmacies or restaurants, were permitted to conduct business between 9 p.m. and 6 a.m. of the next day in any Neighborhood-Commercial (N-C) zone. Springfield's zoning ordinance provided for four types of residential zones, two industrial, one office and three commercial. The commercial consisted of a highway commercial, a general commercial, and a neighborhood commercial (N-C) zone. There are three small N-C zones in the Township, each abutting residential areas. Three sides of the N-C zone on Mountain Avenue in which plaintiff proposed to locate its store are adjacent to residential zones. Some homes exist within the zone.
The Township Committee's intent in adopting the ordinance was to protect the character of the residential neighborhoods serviced by the stores in the contiguous N-C zones. These zones are located in the midst of the Township which is essentially
residential in character. In this manner the Township sought to prevent, as Committeeman Weltchek testified, "an intrusion on the privacy of these areas, especially in the late hours of the evening." The highway or general commercial establishments which are not subject to the closing hours of the ordinance are located on the outskirts of the Township.
In addition to the Quick Chek store located in the N-C zone, a number of commercial establishments other than pharmacies and restaurants would be affected by the ordinance. Pharmacies were excluded because of emergency needs for medicines and drugs. Since the area's restaurants were small and family oriented and had no liquor licenses, it was believed that customers would be in the process of completing their meals and there would likely be no new business after 9 p.m.
The trial court found that fixing the closing times at 9 p.m. for businesses in the N-C zone because of the surrounding residences enhanced the health, peace and comfort of persons residing in those areas. It held that such a purpose was within the police powers of the municipality and accordingly the ordinance was rationally based and complied with substantive due process. The trial court noted that the ordinance was presumptively valid, that the burden of proof rested upon the plaintiff, and that it accepted the evidence with respect to the intent and purpose of the ordinance.
Before considering the trial court's ruling on the merits, we shall first address a procedural issue. Following the court's decision, the plaintiff moved for reconsideration and amended factfinding. Attached to its motion was an affidavit of plaintiff's president consisting of ten pages detailing numerous facts and contentions. Attached to the affidavit were four exhibits consisting of two diagrams of the area adjoining the Quick Chek location and a list of businesses located there, a schedule of municipal ordinances together with excerpts of certain sections, Quick Chek's lease, and a resolution of the Planning Board.
Plaintiff's counsel stated on oral argument of the motion that it wished the court to consider the additional facts submitted in
the moving papers. Counsel conceded these matters should have been brought to the court's attention at trial. Defendant objected to submission of any additional evidence and the trial court agreed, holding that it was not newly discovered and could have been produced at trial.
The trial court properly rejected the additional information which plaintiff sought to introduce into the record after the trial had concluded and the court had rendered its written opinion. Although labelled a motion for reconsideration and amended factfinding, the motion was in essence one for a new trial to permit the introduction of evidence which plaintiff had failed to produce at trial. R. 4:49-1. This Rule empowers a trial judge on motion served within ten days after the court's conclusions are announced in nonjury actions to open a judgment, if one has been entered, take additional testimony, make new findings and conclusions and direct the entry of a new judgment. However, a litigant does not have an absolute right to have a proceeding reopened to produce additional evidence. It must clearly and convincingly appear that there was "a miscarriage of justice under the law."
When a motion for a new trial is made under R. 4:49-1 to produce additional evidence, such a motion should be granted when that evidence would probably alter the judgment and by due diligence could not have been discovered before the court announced its decision. See Nieves v. Baran, 164 N.J. Super. 86 (App.Div.1978). These are also among the prerequisites to relief from a final judgment within one year under R. 4:50-1. Under that rule it is well established that it must appear that the evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at the trial, and that the evidence was not merely cumulative. State v. Speare, 86 N.J. Super. 565, 581-582 (App.Div.1965), certif. den. 45 N.J. 589 (1965); Minter v. Bendix Aviation Corp., 26 N.J. Super. 268, 271 (App.Div.1953), rev'd on ...