The Law Division entered judgment for the defendants for the reasons expressed in its opinion reported at 68 N. J. Super. 118 (1961). See 16 Rutgers L. Rev. 469 (1962). The Appellate Division reversed and remanded the case for further proceedings not inconsistent with its opinion reported at 73 N. J. Super. 120 (1962). We granted certification on the defendants’ application. 37 N. J. 231 (1962).
In 1956 the plaintiffs-respondents’ predecessor (Ze-Essex Realty) assembled a 131-acre tract in the Township of Rari-tan for residential development. The tract was divided into five sections with a separate subdivision map for each section. The subdivision maps, along with a drainage plan, were prepared by Mr. Finnegan, a licensed engineer and surveyor who was also the Township Engineer. On June 11, 1956 the Township Mayor advised Ze-Essex that his letter would serve as preliminary approval of the Ze-Essex Map prepared by Mr. Finnegan, “conditioned upon the tract being able to have sanitary sewer facilities and the lot sizes being 70 x 100.” On July 27, 1956 the Township Committee adopted formal resolutions which approved the plats of sections 1, 2 and 3, contingent upon the execution of a developer’s agreement, the posting of a performance bond, the construction of a sewage disposal plant, and the filing of the plats. The resolutions set forth that the plats were to be filed within one year but contained no stated time limits for the performance of the other contingencies. A contemporaneous resolution, adopted on July 27, 1956 by the Township Committee, authorized the formation of the Raritan Valley Sanitation Company, which was to construct and operate the disposal plant. On August 23, 1956 a developer’s agreement between the Township and Raritan Ridge, Inc. (apparently a purchaser under contract with Ze-Essex) was duly executed. This agreement related to section 1 as did a performance bond which was executed on August 23, 1956 by Raritan Ridge and its surety.
While all of the foregoing was taking place the Township had no planning board ordinance or any ordinance regulating
In the early spring of 1957 work was begun on the four model homes in section 1 and there was testimony indicating that they were “85 to 90 per cent completed” by the fall of 1957. In addition curbs and sidewalks were placed in front of the homes, road grading and graveling was done, utility poles were installed, and some other work was completed during the spring of 1957. On July 25, 1957 the Township Committee adopted a resolution which extended until August 9, 1957 the time for executing the developer’s agreement for sections 2 and 3 and the time for filing the plats for sections 1, 2 and 3. On August 7, 1957 the Township Committee further extended such times until November 1, 1957. On October 31, 1957 the developer’s agreement relating to sections 2 and 3 was executed by Ze-Essex and the Township officials. Performance bonds were executed a day earlier by
On July 14, 1958 the Township adopted its first zoning ordinance. The zoning map which accompanied the ordinance sketched the lots as laid out in sections 1, 2, 3, 4 and 5 and placed them in an area zoned for residential purposes. In addition the zoning ordinance contained a provision designed generally to protect the interests of developers who had obtained Township approval of their subdivision maps prior to the adoption of the zoning ordinance. In October 1958 the plaintiffs made arrangements to take over the development of the 131-acre tract which had remained relatively dormant since 1951. Some of them had an interest in the development from the start but before they took it over in its entirety they conferred with the Township officials and satisfied themselves that there would be no obstacles to their filing of plats for sections 4 and 5, to their completion of the model homes, and to their proceeding with the development. By December 1, 1958 the plaintiffs had acquired title to the entire tract and thereafter they proceeded expeditiously with steps towards its full development for residential purposes.
The testimony for the plaintiffs was that at the time of their acquisition of title they had made payments and had assumed obligations totaling about $440,000 and thereafter they became obligated to pay $68,000, making a total of payments or obligations in the sum of $508,000. In addition
On April 15, 1959 the Township’s Planning Board adopted a resolution recommending that the subject property be rezoned. Thereafter, the Township Committee obtained an opinion from its attorney advising that it would be “on firm ground in attempting to rezone this area” and on August 19, 1959 the Planning Board recommended that the Township’s zoning ordinance be amended to allow “light manufacturing exclusively and to prohibit residential use” in the area in question. The plaintiffs state that the first knowledge they had of the proposed rezoning was in August 1959. Pursuant to their request they were afforded the opportunity of appearing before the Planning Board in September 1959. At about that time the Raritan Yalley Sanitation Company was advised by the State Department of Health that its application for approval of its proposed sewage disposal plant had been reviewed and that it might expect to receive “formal permits for construction and operation at ran early date.” In or about October 1959 the Board of Health of the" Township received the plans and specifications for the proposed sewage treatment plant for its consideration and approval.
The November 23, 1959 zoning amendment was preceded by much study and discussion among the officials of the Township and the representatives of Community Planning Associates, a professional planning consultant which had been retained by the Townhip since 1957. In 1950 the Township, which covers an area of 5% square miles, had a population of 2763. At that time much of its land was unused or used for agricultural purposes, and it had but a few commercial establishments. With the construction of the Garden State Parkway, which runs through the Township, its character began to change. By 1957 its population had increased to 7852 and by 1960 it had increased to 15,287. The residential
The plaintiffs contend that increase in tax ratables from industry and relief of school congestion were not permissible objectives within the Zoning Act.
R. S.
40:55-32. That act provides that zoning regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: “to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population.” It is to be noted that within the borders of the statutory language, the zoning power may be exercised to promote the general welfare, a term which has received very broad definition in our State. See
Pierro v. Baxendale,
20
N. J.
17, 28 (1955). In their efforts to create a better economic balance in the Township by stimulating industrial rather than residential development, the Township officials were seeking to advance, the public welfare by alleviating the heavy tax burden and the harmful school congestion. So long as this was being done reasonably as part of and in furtherance of a legitimate comprehensive plan for the zoning of the entire municipality, it fell within the terms of
R. S.
40:55-32. See
Ward v. Montgomery Tp.,
28
N. J.
529, 535 (1959);
Newark, etc., Cream Co. v. Parsippany-Troy Hills Twp.,
47
N. J. Super.
“The conclusion is inescapable that the township was hungry for tax revenue. Manifestly, its fiscal picture was such that a new source of income would serve the general economic welfare. Pursuit of that objective was entirely worthy of the attention of the municipal fathers. And its achievement through land use regulation will not warrant judicial condemnation as long as it represents an otherwise valid exercise of the statutory zoning authority. If the amendment of the ordinance is compatible with and furthers a legitimate comprehensive plan for the zoning of the municipality within the contemplation of the statute, N. J. 8. A. 40:55-32, it is legally unobjectionable. The fact that increased tax revenue is intended to result therefrom, or that an individual property owner may be benefited incidentally does not justify a charge of perversion of power. Kozesnik v. Montgomery Twp., supra; Collins v. Board of Adjustment of Margate City, 3 N. J. 200 (1949); Rockaway Estates v. Rockaway Tp., 38 N. J. Super. 468 (App. Div. 1955); Greenway Homes v. Borough of River Edge, 137 N. J. L. 453, 456 (Sup. Ct. 1948).” 28 N. J., at pp. 535, 536.
Similarly, in Newark, etc., Cream Co. v. Parsippany-Troy Hills Twp., supra, Justice Hall, then a member of the Superior Court, gave the following answer to an inquiry whether an ordinance was valid where it had the avowed purpose of maintaining the essential residential character of the community along with the encouragement of industry in appropriate areas, thereby securing “a future balanced land use leading to a sound municipal economy by non-residential tax ratables contributing to the cost of necessary municipal services for all”:
“Is a zoning classification based upon such a purpose and intent a valid exercise of zoning power? I think it is. Zoning is one aspect of the sovereign police power. Such power is not limited to measures directly needful to serve the public health, morals and safety. It may also be invoked to serve the public convenience and general prosperityand well-being. Mansfield and Swett, Inc. v. West Orange, supra, 120 N. J. L., at page 153; Pierro v. Baxendale, 20 N. J. 17, at page 28 (1955). The essence of zoning is to provide a balanced and well-ordered scheme for all activity deemed essential to the particular municipality. Berdan v. City of Paterson, 1 N. J. 199, 205 (1948); Kozesnik v. Township of Montgomery, 24 N. J. 154 (1957). Subject to the rule of reason, the kind of community and the kind of balance is exclusively a matter for local legislative determination. Duffcon Concrete Products v. Borough of Cresskill, 1 N. J. 509 (1949). I conclude that a zoning scheme seeking balanced land use to obtain a sound municipal economy by encouraging industry on which taxes may be levied to help meet the deficit in the cost of municipal services to home owners is a proper exercise of the zoning power, subject always to the reasonableness of the classification and regulations enacted to achieve the end both generally and with respect to particular property.” 47 N. J. Super., at p. 328.
See 1 Rathkopf, Zoning and Planning, Chapter 10 (3d ed. 1960).
The Law Division found from the evidence that the rezoning was in keeping within a comprehensive plan and we see no occasion for disturbing its finding. See 68 N. J. Super., at p. 129. The comprehensive plan evidenced in the original zoning ordinance was not immutable and could reasonably be altered either because of changed circumstances or because of changed viewpoints as to the needs and interests of the entire community. See Kozesnik v. Montgomery Twp., 24 N. J. 154, 167 (1957); Hochberg v. Borough of Freehold, 40 N. J. Super. 276, 286 (App. Div. 1956); cf. S & L Associates, Inc. v. Washington Twp., 61 N. J. Super. 312, 327 (App. Div. 1960), modified 35 N. J. 224 (1961). See also Rodgers v. Village of Tarrytown, 302 N. Y. 115, 96 N. E. 2d 731, 733 (1951); Haar, “In Accordance with a Comprehensive Plan,” 68 Harv. L. Rev. 1154, 1166 (1955). The fact that the comprehensive plan, as altered, included a designated area dedicated to light industry to the exclusion of residential uses may not be viewed as a legal deficiency, so long as the test of the overall reasonableness was satisfied. See Fanale v. Hasbrouck Heights, 26 N. J. 320, 328 (1958); Kozesnik v. Montgomery Twp., supra, 24 N. J., at p. 169; but cf. Katobimar Realty Co. v. Webster, 20 N. J. 114 (1955).
We come now to the issue of whether the course of conduct between the plaintiffs and their predecessors on the one hand and the public officials on the other hand gave rise, under principles of equitable estoppel, to vested residential develop
In Vogt v. Borough of Belmar, supra, the Borough adopted an ordinance which provided for a volunteer fire department. The ordinance made provision for active firemen over the age of 21 but contained no reference whatever to junior firemen under that age. However, the services of junior firemen were availed of for many years and when one of them was injured he filed a claim for compensation which was resisted by the Borough. In holding that the Borough was estopped, the court noted that it would be contrary “to the plainest principles of justice,” to permit the Borough “to invoke the formal requisites of local law” to defeat the claim for compensation. In the course of his opinion for the court, Justice Heher had this to say:
“In respect of matters within the realm of its general power and authority, a municipal corporation is ordinarily subject to the doctrine of estoppel in pais to serve the demands of right reason and justice, at least where the invocation of the rule would not hinder or prejudice essential governmental functions, and especially where the irregularity or deficiency is largely technical or formal and not of the jurisdiction. Town of Essex v. New England Telegraph Co., 239 U. S. 313, 36 S. Ct. 102, 60 L. Ed. 301 (1915). While not applied as freely against the public as in the case of private individuals, the doctrine of estoppel may be invoked against a municipality to prevent manifest wrong and injustice. City of Los Angeles v. Los Angeles County, 9 Cal. 2d 624, 72 P. 2d 138, 113 A. L. R. 370 (Sup. Ct. 1937).” 14 N. J., at p. 205.
In
Summer Cottagers’ Ass’n of Cape May v. City of Cape May, supra,
the city sold land without complying with the statutory procedures relating to public notice and free competitive bidding. After a motel being constructed on the land was practically completed, some citizens sought to void the sale of the land. In invoking principles of estoppel to bar the attack on the sale, the court pointed to the distinction
In Tremarco Corporation v. Garzio, supra, the Township of Ewing issued a permit to the plaintiff to build a public garage and a gasoline station. Construction contracts were entered into, gas tanks were delivered and monies were expended for title and architectural work. Thereafter an amendment precluding the plaintiff’s proposed use of its premises was passed. In dealing with the issue of whether the plaintiff should be permitted to proceed despite the later amendment, the court, through Justice Schettino, pointed out that the ultimate objective was fairness to both the public and the individual property owner and that it was necessary to strike a proper balance between the interests of the plaintiff and the right and duty of the municipality to promote the public welfare of the community through proper planning and zoning. Being satisfied “that the equities strongly predominate in favor of the plaintiff,” the court held that it should be permitted to proceed with construction under its permit. See 32 H. J., at p. 458; Sautto v. Edenboro Apartments, Inc., 69 N. J. Super. 420, 429 (App. Div. 1961).
Similarly in Telimar Homes, Inc. v. Miller, supra, a developer acquired a tract of land for subdivision and development. The tract was divided into four sections and the map of the first section providing for quarter-acre lots was approved by the officials of the town. Thereafter roads were constructed, model homes were built and a water company was organized. A map of the second section was also approved but shortly thereafter tire town amended its zoning ordinance to require minimum lots of a half acre. When the plaintiff submitted its maps for the third and fourth sections providing for quarter-acre lots they were disapproved. In holding that the developer had a right to proceed with respect to all four sections without regard to the zoning amendment, the court had this to say:
“It is clear from this record that the water system, roads, drainage system, model house construction and advertising were laid out and designed for the benefit of all four sections developed as a single, overall tract; that they would have been laid out and treated on anentirely different basis if the development of each section were to be separate; and that, prior to the zoning amendment, substantial construction had been commenced and substantial expenditures had been made in partial development of sections three and four, as well as sections one and two. Hence, plaintiff acquired a vested right to a nonconforming use-as to the entire tract (see: Elsinore Property Owners Ass’n v. Morwand Homes, 286 App. Div. 1105, 146 N. Y. S. 2d 78).” 218 N. Y. S. 2d, at p. 177.
See River Forest State Bank v. Village of Hillside, 6 Ill. 2d 451, 129 N. E. 2d 171, 173 (1955); District of Columbia v. Cahill, 60 App. D. C. 342, 54 F. 2d 453, 454 (D. C. Cir. 1931).
We are not concerned with, a residential development which originated after the adoption of the municipal ordinance establishing the planning board and regulating land subdivision.
Cf. Levin v. Livingston Tp., supra; Hilton Acres v. Klein, supra.
PTor are we concerned with a situation in which the developer is seeking to avoid conditions imposed by the municipality in connection with its approval of the residential development.
Cf. Magnolia Development Co., Inc. v. Coles,
10
N. J.
223 (1952);
Reid Development Corp. v. Parsippany-Troy Hills Tp.,
10
N. J.
229 (1952). We are here confronted with a case in which the development originated before the municipality had any planning board or land subdivision ordinance and in which the developer (and his successors) prosecuted the development thereafter with substantial efforts and expenditures and with consistency though “haltingly and with interruptions.” 73
N. J. Super.,
at
p.
138. It is significant that when there were interruptions the municipality did nothing whatever towards expedition of the development nor did it do anything to' suggest to the developer that his interests would be in jeopardy if he did not proceed in faster fashion. On the contrary, the municipality granted formal approval's and extensions which on their face avoided defaults and justified the developer’s reliance. Although the Law Division was of the opinion that these approvals and extensions were wholly
ultra vires
in the primary sense and therefore could not furnish any support whatever for the claim of equitable estoppel or vested rights, we do not
When the development originated there were no- significant questions of irregularity or want of municipal power. The tract was assembled and subdivided, informal and formal approvals were obtained, a developer’s agreement was executed, a performance bond was filed, and building and board of health permits were issued for the construction of model homes. When the ordinances establishing a planning board and regulating subdivision were adopted all concerned considered that the development was to be deemed as already properly under way and was not to be affected by the terms of the ordinances. That issue was a doubtful one (cf. Lake Intervale Homes, Inc. v. Parsippany-Troy Hills, supra, 28 N. J., at p. 432; Cunningham, “Control of Land Use in New Jersey,” 15 Rutgers L. Rev. 1, 29-30 (I960)) though it would seem clear that, in the subdivision ordinance itself, the Township could have designated developments under way as an exempt class within the contemplation of N. J. S. A. 40:55-1.14. Although this was not done, we have already indicated our view that the course which was actually followed thereafter in good faith may not, either justly or under the precedents, be considered as a nullity and utterly void conduct incapable of serving as a basis for the claim of equitable estoppel or vested rights. Cf. Vogt v. Borough of Belmar, supra, 14 N. J., at p. 205; Summer Cottagers’ Ass’n of Cape May v. City of Cape May, supra, 19 N. J., at p. 506.
The Township has advanced technical arguments which need not detain us since they have little substance and no relation to the equities of the case. The fact is that it is seeking to disavow its commitments to a developer with whom it has not dealt at all fairly. When it belatedly became alarmed at its residential growth, it did not seek to work out a reasonable solution with the developer which might have reduced the number of planned houses and at the same time have permitted the developer to proceed so as to retrieve its
Affirmed and the cause is remanded for further proceedings in conformity with this opinion. Ho costs.
For affirmance ■— Chief Justice Weintkatjb, and Justices Jacobs, Ekancis, Pboctoe, Hall, Sohettino and Hakte-MAN — 7.
For reversal — Hone.