On appeal from Superior Court, Law Division, Hudson County.
Antell, Long and D'Annunzio. The opinion of the court was delivered by Antell, P.J.A.D.
[213 NJSuper Page 154] Plaintiffs brought this action against the Hudson County Executive and Board of Freeholders seeking to enjoin them from purchasing land in Kearny for the purpose of constructing a jail thereon. Plaintiffs allege that the presence of a jail on the site in question would violate Kearny's zoning ordinance, that the county's proposed action violates the provisions of the County Correctional Policy Act of 1982, N.J.S.A. 30:8-16.3 et seq., and that defendants' selection of a site for the jail was arbitrary and capricious. The Law Division, in three separate rulings, concluded that the county was not subject to local zoning requirements, that any violations of the County Correctional Policy Act should not bar the county from acquiring the property, that the county was in substantial compliance with the Act, and that the county's choice of a site for the construction of a jail was not arbitrary and capricious. Plaintiffs appeal, contending that the foregoing rulings were in error. Defendants do not dispute that if the county were subject to
municipal zoning regulations a variance would be required for the construction of a jail on the site in question.
It is generally held that state agencies are not subject to municipal zoning regulations. Berger v. State, 71 N.J. 206, 218 (1976); Rutgers v. Piluso, 60 N.J. 142, 150 (1972). See generally 2 Anderson, American Law of Zoning 2d, § 12.06 (1976); 8 McQuillin, Municipal Corporations, § 25.15 (3d Ed.1983). A county "is an agency of the State to administer state power and authority." Godfrey v. McGann, 37 N.J. 28, 34 (1962); Bergen County v. Port of New York Authority, 32 N.J. 303, 312 (1960).
In Aviation Services v. Bd. of Adjustment of Hanover Tp., 20 N.J. 275 (1956) the Supreme Court identified the county as a superior sovereign and stated that
[W]here the immunity from local zoning regulation is claimed by any agency or authority which occupies a superior position in the governmental hierarchy, the presumption is that such immunity was intended in the absence of express statutory language to the contrary. [ Id. at 282].
See generally, Note, Governmental Immunity From Local Zoning Ordinances, 84 Harv.L.Rev. 869, 877-879 (1971). The Court's identification of the county in Aviation Services as a governmental unit superior to the municipal unit was based upon its decision in Hill v. Borough of Collingswood, 9 N.J. 369 (1952), wherein it was held that the Camden County Park Commission was not subject to the zoning regulations of the Borough of Collingswood even though the county park was located within the municipal boundaries.
The view that a county is presumably immune from local zoning ordinances is not absolute. See Tp. Com., Denville v. Bd. of Ed., Morris County, 59 N.J. 143 (1971) where the court held that county vocational schools are subject to local zoning. Moreover, in Rutgers v. Piluso, supra, the court stated that it did not read Aviation Services v. Bd. of Adjustment of Hanover Tp., supra, "to be a commitment that immunity must be granted whenever that superiority exists." 60 N.J. at 152, n. 4.
New Jersey now rejects any hard and fast rule in determining whether a governmental agency is immune from local zoning regulations. Instead, the test "is basically one of legislative intent -- i.e., whether the Legislature intended the particular governmental unit to be immune with respect to the particular enterprise." Berger v. State, supra, 71 N.J. at 218; Rutgers v. Piluso, supra, 60 N.J. at 152; 8 McQuillin, supra, at 41. In Rutgers v. Piluso, supra, the court noted that "[t]hat intent, rarely specifically expressed, is to be divined from a consideration of many factors, with a value judgment reached on an overall evaluation." 60 N.J. at 152 (footnote omitted). Included among those factors are:
the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests. [ Id. at 153].
The court noted that no one factor is necessarily controlling. Ibid. In some cases, one factor may be more significant and "completely overshadow all others." Ibid. Moreover, there are instances "where the broader public interest is so important that immunity ...