*1 WARD, PLAINTIFF-APPELLANT, B. H. GEORGE v. DONALD SCOTT, MAYOR, AL., ET THE CONSTITUTING TOWN BLOOMFIELD, THE COUNCIL OF TOWN OF A MUNICI- JERSEY; PAL THE CORPORATION OF STATE OF NEW WEIKEL, AL., ET HOWARD THE CONSTITUTING (ZONING) BOARD OF THE ADJUSTMENT OF TOWN BLOOMFIELD; MARTIN, OF BROOKS C. BUILDING BLOOMFIELD; OF THE INSPECTOR TOWN OF AND COMPANY, LIGHAM CONSTRUCTION A CORPORATION JERSEY, OF THE OF STATE NEW DEFENDANTS-RE- SPONDENTS. Argued September 30, Decided December1952. *2 Mr. Everett the cause for the argued M. Scherer appellant Riker, & Mr. (Messrs. Emery Danzig, George E. attorneys; Callahan, on the brief).
Mr. Fred A. Lorentz the cause argued respondent Ligham Stamler, Construction Lorentz k& Company (Messrs. attorneys).
Mr. Thomas J. for the Markey argued respond cause ents, Council, Town Board of and Brooks Adjustment C. Martin, Town Building Inspector, of Bloomfield. opinion court was delivered by J. The Town Council Bloomfield a
Jacobs, of granted variance to Construction Ligham to a Company pursuant recommendation of the board of under R. adjustment the Law Division 40:55-39(A); action, sustained this ensuing appeal by plaintiff B. Ward has George been certified to this court on its own motion.
In 1949 Economy Built Homes a Corporation, company controlled by Saul T. Ligham, purchased a tract of large land on the northeast side Street, of Broad Bloomfield, for a residential known development as Hearthstone Village. Included within this tract was property located near the busy intersection Broad Street and Avenue and Watchung con- veyed Constritction Ligham Company, which is likewise controlled by Saul This Ligham. property has T.. a feet Broad frontage Street; on 84 feet thereof nearest the aforementioned is within a medium intersection volume business zone and the remainder is within a resi- dential zone. Further description thereof appears in the Scott, 18 in Ward reported of the Law Division
opinion restated here. be and need not (1952) J. Super. made Company application Construction In 1950 Ligham a to erect permit Bloomfield for Inspector Building on its parking facility a and off-street building commercial and a petition This was denied application property. s adjustment with the local duly wa filed board appeal that the location of the proposed building The petition alleged business and location general was “adjacent existing juncture commercial section at is in a concentrated Avenue”; that within the Broad Watchung Street and would substantial resi there had be been neighborhood additional commercial facil dential development requiring only lot would be the off- ities; parking that proposed area would “virtually in the facility street parking area”; in the and that the eliminate all existing congestion to “the convenience and wel use would contribute proposed number in the persons ever increasing living fare of the After board adjustment area.” hearing, that resolution which found “as fact reason adopted of other commercial lands buildings of the proximity circumstances are exceptional premises question, relief and to the town recommended justifying present” The board that a variance also found granted. council would be a substantial detri “not variance granting would “not intent impair ment to the good” public Ordinance.” On June Zoning purpose *4 the recommendation of the board the town council approved inspector and directed to issue adjustment building the necessary permit. in Law Division plaintiff,
In his complaint that actions of the alleged in the neighborhood, resident and town council were invalid and should adjustment board of 11 set forth that Construc- Ligham Paragraph be set aside. had not established “unnecessary hardship,” tion Company that if the 15 set forth Act is con- Zoning and paragraph adjustment the board of recommend a strued to permit variance without a previous unnecessary finding hardship then it is unconstitutional. In the complaint dismissing the Law Division questioned necessity, under of a 40:55-39(d), of undue N. J. finding hardship (18 Super. 43) but concluded event the town “did any think that this was a ease of undue On the hardship.” plaintiff’s appeal from the entered in the Law judgment Division the issues our determination are: requiring present is the (1) recent construction of R. S. 40:55-39(d) Monmouth Lumber Co. Ocean 9 N. J. 64 Township, now (1952), to be if rejected; not, is R. (2) :55-39(d) to be declared unconstitutional as in sufficient lacking legis lative standards to guide adjustment board and the municipality; did the board of (3) adjustment make adequate jurisdictional and factual within the findings requirements of R. S. 40:55-39(d).
I. In the Monmouth Lumber case Justice reviewed Burling history 40:55-39, R. S. with particular reference to its recent extensive revision in L. 1948, c. 305 and L. 1949, c. out, 242. As he pointed subsection that the provides (c) board of adjustment may where, variance grant by reason of the extraordinary situation or condition of property, the strict application restrictions would result “peculiar exceptional practical to, difficulties or ex and undue ceptional owner”; hardship upon, con trast, however, subsection omits the (d) specific require ment for a showing, practical difficulties undue hard that “in ship provides cases and particular for special reasons” the board of adjustment may recommend to the governing body. municipality a variance be Unlike subsection granted. action taken (c), board under adjustment subsection (d) subject to approval or disapproval by municipality, no variance be under either permitted subsection unless it “can granted *5 122 will good
without detriment to the public substantial the zone the intent and purpose not substantially impair v. Board Liemann ordinance.” See (1952); J. Gerkin Adjustment, Tp., Cranford (App. 17 N. J. Ridgewood, Super. Village of 9 N. J. 404 certification denied Div. 1952), and appropri The clear appears legislative purpose of extra ately showing Where expressed. prescribed is and undue hardship condition of ordinary property itself, under subsection made the board of adjustment without submission to the municipal variance (c), grant Where, are rea however, there body. “special .governing the board act, sons” within the contemplation without .adjustment may, rigid requirements regard a variance for approval of subsection recommend simply (c) de or The disapproval by municipality. Legislature unduq withheld from liberately hardship subsection (d) which it in subsection and we included requirement (c), Are at its clear liberty disregard statutory language .and We now reaffirm the views fully meaning. expressed, issue, without dissent on this in the Monmouth Lumber case. Glasser, Law, 7 L. Rutgers Administrative Rev. Cf. where the author notes that the New Jersey “courts (1952), held this have year expressly (to apparent surprise many attorneys, statutory municipal although language that where the would seem to be recommendation clear) A., of N. J. Rev. 40:55—39 N. J. (d), Stat. procedure there need adjustment, followed board of be no finding See Beck v. Board unnecessary hardship.” Adjustment 15 N. J. Orange, Super. East Div. (App.
II. contends that R. appellant 40:55-39(d) He does not unconstitutional. question general right to the board of adjustment Legislature delegate a variance subject to recommend approval disapproval *6 603, 47 Fox, v. 274 U. S. municipality. Gorieb Cf. however, contends, 675, S. Ct. 71 1228 He L. Ed. (1927). administrative delegation municipal such agency must be a sufficient standard accompanied by (Van basic New Jer v. Workers Federation Riper Telephone Traffic as 335, 2 J. sey, N. 353 that subsection (1949)), (d) in the Monmouth Lumber fails to set forth ease interpreted such it standard. In with the standards question dealing is are terms elementary specific we not confined to subsection, but must examine the entire act in the (d) of its Carlson v. objectives. See light surroundings Landon, 524, 342 72 525, Ct. 96 L. Ed. U. S.
Nor we in are restricted to the ascertainment of standards terms if express from the they may reasonably implied Montclair, entire See v. 124 J. 135, act. Brandon N. L. 143 & Ct. affirmed 125 N. J. L. 367 A. (Sup. 1940), 1940), (E. where Heher statute Justice noted that “A often rightly inference, as and means of the speaks plainly by by purpose it, which underlies manner. That any other which implied is as much' a of the law as that which clearly part Jersey See also West expressed.” Seashore Railroad v. Commissioners, Board Public Company Utility 87 170 N. J. L. & A. On 1915). issue this (E. present doctrine receive wholesome support only from of the validity of general presumption legislation (Attorney McGuinness, v. 78 General N. J. L. 371 & A. (E. IV, VII, but also from Article Section 1910)), paragraph of our Constitution which states that provisions law Constitution of any concerning municipal “shall be corporations liberally construed their favor.” It is settled that not vest un Legislature may bridled or the administrative but agency a reasonably must furnish standard to it. adequate guide Workers, etc., N. J. Bell Tel. Co. v. Communications 5 N. J. School, 354, 370 State Wheeler (1950); Driving Auto N. Inc., 17 J. Div. Super. (App. 1952). But the of modern have government exigencies dictated increasingly standards detailed minutely the use of rather than general Thus, the power. enactments under the police regulatory has been guided Utility Board of Public Commissioners necessity” convenience standards of simple “public 48:2-21. R. S. and reasonable.” and “just (R. 48:11-1) Commissioners, Utility Public v. Board See Fornarotto The Commissioner J. L. to fix Control, authority prices Alcoholic Beverage L. 39 Burnett, 122 N. J. promulgate regulations (Gaine & A. 1939)), J. L. 317 123 N. (E. affirmed 1939), legislative pronouncement has been guided *7 a manner in “such administered the statute shall be the and eliminate racketeer as to promote temperance Director :1-3, 39. And the R. 33 S. bootlegger.” take meas authorized to such Milk Board has been Control of and the promulgation ures of prices including fixing unfair, control or “necessary prevent be regulations are likely which practices destructive or unjust, demoralizing interests in of to result in the demoralization agricultural milk or interfere production this State engaged of sani fresh, supply wholesome with the maintenance of R. the consumers of this State.” See S. milk for tary Co., Milk Milk v. Newark 4:12A-21; Board Control State Farms, Como Inc. 521 & A. 504, 1935); N. J. (E. 118 Eq. 306, 312 Div. See Foran, 1950). 6 Super. (App. v. N. J. Assn., 314, N. L. 323 & L. 126 J. Veix v. also Seneca B. Little v. Ferry Bergen County & A. 1941); Borough (E. 536, 9 J. 544 (1952). Authority, Sewer in federal enactments and approved embodied Standards have been of Court of United States Supreme Power & Co. v. Light American breadth. See similar Secur 90, 104, 329 67 Ct. Commission, U. S. S. ities Exchange States, 103, 115 Lichter v. United 133, L. Ed. (1946); 91 1294, 1694, 92 L. 1726 742, 786, 68 Ct. Ed. S. 334 U. S. court, an Lichter case the sustaining In the (1948). standard, listed other standards general “excessive profits” “just held reason adequate, including haA^ebeen which
125 Co., Natural Gas Hope able” Power Commission v. (Federal 333, 344 88 L. 281, 320 64 Ct. Ed. 591, 600, U. S. S. Anthra a “fair return” (Sunshine (1944)), prices yielding 907, 397, Ct. 381, cite 60 Adkins, Coal Co. v. 310 U. S. S. 84 “unfair methods 1263, L. 1273 Ed. (1940)), Bro., & v. Trade Commission competition” Keppel (Federal 814, 819 78 L. 304, 423, 291 Ct. Ed. 311, U. 54 S. S. Law, Davis, 44 p. Administrative (1951). See (1934)). the fore Examination of the authorities indicates which in zoning, have been used going principles liberally exercise of police another illustration simply 405, 414 9 J.N. Adjustment, Schmidt v. Board power. E. 914 554, 134 Fox, Thus in v. 145 Va. S. Gorieb 675, 603, 47 Ct. affirmed 274 S. Ct. U. (Sup. App. 1926), cer 71 L. ordinance (1927), zoning permitted Ed. “sub- tain variances where the structures would proposed In city.” serve welfare of neighborhood 649, 321 Mass. Carson v. Board Lexington, Appeals was author N. E. board 1947), 2d 116 ized to where “the convenience exception public grant and where such served, excep welfare will substantially tion will not tend to status of impair neighborhood.” & Ga. See also McCord Ed Bond Condon Company, And E. 86 A. L. Review, I. Board 71 R. Olevson Zoning *8 2d the the town 1945) A. statute permitted the council make to ordinance special exceptions zoning harmony purpose cases in general appropriate where exception intent of ordinance “or such zoning is for the convenience or welfare of the reasonably necessary public.” Act, the above to the terms of our we Zoning
Applying has not in sense un Legislature any find that granted It controlled the administrative agency. expressly in R. :55-32 the to be set forth proper zoning purposes achieved including lessening congestion, securing fire, and other panic safety dangers, providing adequate light and the prevention of overcrowding, avoidance of undue concentration of and the pro population, motion health, morals or welfare. It recognized that comprehensive restrictive carry regulations designed out these if goals, rigidly enforced without literally any opportunity situations, whatever relief in special might result in serious injustice or impairment underlying public purposes; it accordingly, wisely adopted policy expressed S. 40:55-39 R. which enables individual vari ances consistent with the interest and the public purposes of the zone plan ordinance. With zoning wisdom equal it provided specific to insure unwarranted safeguards against action and untrammeled administrative discre Thus, there tion. must be a upon notice hearing adequate to interested parties. :55-44. If the ultimate relief is granted the board of adjustment under sub acting division there must (e), be a specific sufficient finding upon evidence of extraordinary condition of the property undue If hardship. the board of adjustment recom simply relief under mending subdivision there must (d), be a specific finding reasons within special the contemplation the act, and the ultimate relief with granted out express approval municipal body. See governing Downey Grimshaw, Ill. 101 N. E. 2d where the 1951), court suggested such ap proval represents lesser significantly exercise than the body’s governing acknowledged power to rezone. Above all, there fixed and far reaching protective restriction in of R. concluding provision S. 40:5 5—39 against allowance of the variance unless it can be “without granted substantial detriment and will public good not substantially impair intent and of the zone purpose ordinance.” See Leimann v. Board Adjustment, Cran Tp., supra; Gerkin v. Village Ridgewood, supra. ford Judicial review of the administrative action is afforded as of VI, V, Art. right (Const. 4; Sec. par. Rule 3:81-2), and our courts have not hesitated to set it aside where it
127 lacked reasonable basis. Leimann v. Board Adjustment, Tp., Gerkin supra; Village Ridgewood, supra. Cranford In the of all find any we fail to light foregoing substantial basis for the thesis that the power delegated under subdivision has not been “canalized within banks (d) Cardoza, it from keep J., in Schechter overflowing.” Corp. States, 551, 837, United U. S. 55 Cf. L. Ed. Administrative (1935). Cooper, See Courts, Agencies and the Jaffe, 41-45 An pp. (1951); on Essay Power, 47 Delegation Legislative Col. L. Rev. 359, 561 Nor do we any see real danger unwarranted or action will survive the successfully ample which are safeguards ever available. It is true that in lieu of the standards set forth the Legislature have might and enumerate with fixed sought anticipate details all of the individual instances in which special variance would be justified. However, indi experience has cated the course, of this and an unwisdom acknowledged of the administrative advantage has been its flexi process bility administrators to deal enabling with un justly as well anticipated as anticipated situations in accordance with general See R. 33 :1-74. legislative guides. Cf. Davis, Law, Salmond, Administrative p. Juris (1951); prudence ed. 52. It (10th 1947), p. seems clear us that consideration sympathetic of the applicable legal principles light problems confronting Legislature its endeavor to deal fairly and with effectively the entire field dictates the conclusion that R. S. 40:55-39(d), in the as construed Monmouth Lumber case, embodies gov standards sufficient to withstand erning the constitutional advanced attack appellant. Stone, The Common Cf. States, in the Law United L. Harv. Rev. : (1936) reminded, too, “We need to be that in the construction of statutes establishing agencies defining powers administrative their there scope derogation is little for the ancient shibboleth that statute strictly construed, placing of the common emphasis must law or for an particulars pur- on their which will defeat their obvious pose. Legislatures agencies create administrative the desire *10 128 efficiently they expectation perform to committed the tasks will advantages least, contemplated That, social at is one
them. weighed resolving so an aim It in doubtful construction. to be function which conclusion that obvious as to make unavoidable the operation carrying upon perform, such into courts are called destructive, constructive, schemes, make administrative reasonably possible, agencies, effective administrative wherever destroy enforcement, them.” and not instruments for-law m. whether, in the tbe issue of we come to
Finally, find made adequate instant matter, adjustment board of . reason special The only within R. S. 40:55-39(d) ings of other “the proximity embodied in its resolution was Construction land of commercial Ligham buildings” alone, reason, standing We consider this Company. .to McQuillin, Municipal Corporations (3rd 8 insufficient. See 166 W. 307; Ky. ed. v. Bray Beyer, 1950), p. Adjustment Kindergan v. Board App. 1942). 2d (Ct. Cf. & A. 137 N. J. L. Edge, (E. o River f districts into community zone which divides Every plan lands; if that lands to business adjacent contains residential variance, for a fact, more, were sufficient to call without the zone and destruction of impairment result, in direct violation of ordinance would progressively in R. 40:55-39 and decisions provision concluding 4 N. J. Adjustment, Lumund v. Board this court. See the Law Division 577, 585 opinion suggests which were there were considerations accompanying further the under establish reasons which special sufficient to in the See 18 N. J. Super. act. policies expressed lying was mentioned in However, 40. none of those considerations find and there were no administrative the board’s resolution of such on thereon. The vital importance findings ings our review has been stressed courts recently judicial & Western Railroad Co. v. City Lackawanna (Delaware, Hoboken, Family Corp. 10 N. J. 418 Finance (1952); 13, 24 J. Div. Super. (App. 1950)) Gough, matter, view of that, their we in the absence believe instant will justice best be served the entire cause to by remanding the board for reconsideration, recommendation findings to the town council in the record evidence light Newark, Commission N. J. (Giordano City City 585, 588 this (1949)) principles expressed opinion.
Reversed and remanded. *11 J. is terri essence of (dissenting). zoning
Heher, torial division to the character the lands and according of structures and their peculiar uses, suitability particular and use within uniformity of the division. Collins Board Adjustment Margate 3 N. J. 200 Potts City, (1949); of of Board Princeton, Adjustment 133 N. J. L. of of is the Such and spirit of the constitutional genius and the It power statute. as is basic enabling zoning thus provided that use restrictions be and uni general form the district; an deviation from particular rule is general inadmissible. Invidious discrimination constitute, would not alone a perversion constitutional and statutory an zoning authority, but also infringement the substance of due law and process of a denial of the is equality by secured Fourteenth Amend right ment to the Federal to Constitution cir persons similarly cumstanced. It is of the nature of the very constitutional and that all statutory zoning process in like cir property treated Montclair, cumstances be alike. Brandon v.
N. J. L. 135 affirmed 125 J. L. 1940), & A. Schmidt v. 1940); Board (E. Adjustment New ark, 9 N. J. 405 (1952). The State Constitution of 1947 empowers the Legislature enact laws” under “general which other municipalities than counties “may adopt ordinances and limiting and restricting specified therein, districts regulating buildings structures, to their according construction, and the nature use, and extent of their and the nature and authority land, uses the exercise of such
extent of the State.” be within the police power deemed to be shall VI, IV, the legislative 2. And Article paragraph Section local subdivisions government grant amended 40:55-30, as R. S. couched in same terms. body 1221. The local 305, governing L. c. p. of such divide the into districts municipality authorized to suited to number, deemed best and area as be may shape, and restrict out carry statutory policy, regulate use and other structures the construction and of buildings districts, and the use of lands within such provided each class or be uniform for “All such shall regulations uses of land through kind of other structures or buildings or district, in one district each but regulations out 40:55—31, differ those in other districts.” from L. c. 1222.- Such p. regulations amended de with a conformity “comprehensive plan shall lessen purposes: for one more following signed streets; fire, safety panic secure congestion wel health, morals or the promote other dangers; air; fare; over prevent provide adequate, light concentration land or avoid undue crowding buildings; *12 with and “shall made reasonable con population,” of the character of the sideration,' other things, among uses, suitability district and its and peculiar particular the value and conserving property with view of of encour use of land the most throughout” aging appropriate 40:55—32. municipality. is ex
The exercise of the necessitate contained police power the rule of reason. Restraints cannot be upon property by The unduly discriminatory. unreasonable or of design reaffirm constitutional was to and define provision cited in relation and to police basic sovereign power zoning use and certain definite standards by condition its prin- nature; and, its essential as recently ciples keeping court, this however broad the by police declared power its exertion by process inherent sovereignty, use-zoning must accord with the letter of constitutional spirit Newark, Schmidt regulation. Adjustment v. Board of of cited supra. The 1947 and its provisions of Constitution of zoning are predecessor terms, cast in that the former identical except function; includes expressly land uses within the regulatory of in the same terms is grant significant an acceptance fundamental limitations of the earlier found the old grant Court of Errors Appeals Brandon v. Montclair, cited and the eases since which supra, have given unquestioned adherence to the of that principle case.
The public
of reasonable
right
for the common
regulation
and welfare is
good
denominated the
The
police power.
exertion of this
for use
is con-
sovereign authority
zoning
trolled
constitutional and
delineation. The
statutory
restraint
laid
upon
individual
right—either
person
or of
property—may
need;
go beyond
public
the means employed must be
reasonable
appropriate
that end.
Arbitrary
invidious distinctions are alien to
the constitutional
principle
and,
well,
constitutional
guaranty
right
private property.
Schmidt v. Board
Adjustment
Newark, cited supra.
In
zoning,
question is whether the restriction consti
tutes
reasonable
regulation
the use of the individual
in the
property
public interest as
from an
distinguished
interference
with the fundamental
right
private
ownership.
police power
not be
exerted in the
service of private interests under the cloak of the public
Humor,
New
good.
Jersey Good
Inc. v.
Beach, 124
Bradley
N. J. L. 162
& A.
(E.
1939); Trenton Water Power Com
pany v.
36 N.
Raff,
J. L. 335
1873). See, also,
Town
Burlington
Dunn,
Mass.
61 N. E. 2d
Jud.
Ct. 1945), certiorari denied, 326
U. S.
S. Ct.
arbitrary right property. statutory by are express
“Special permissible exceptions” the local “in with the authority, provisions” accordance L. as amended 40:55—-39b, by ordinance. zoning 779. c. 1223 and L. c. p. p. reasonably designed
Exceptions general regulation the common to serve the comfort and convenience or public needs; with and welfare in social-economic good keeping indis interests, rather than do not constitute merely private criminate in of the constitutional spot zoning derogation uses are of use statutory principle zoning. Special the public allowable under the statute if not in excess of involves the need or in mode or method. But this discre and, exercise of unless the the legislative power; confined administrative function in this tionary regard action, as in a definite and certain and rule policy Adjustment Newark, supra, v. Board cited Schmidt not trans falls as delegation essentially legislative ferable to the Van Compare Riper local administrator. 2 N. J. 335 J., Workers’ Federation Telephone Traffic Co., Control v. Milk State Board Milk Newark (1949); 118 N. J. & 1935). A. Eq. (E. juris-
Such involve the exercise of an exceptions original diction created the ordinance under statutory power, cases and for provide for themselves specific peculiar uses in the nature or special interest their public the particular compatible circumstances are not with regula- tions must be and uniform their general sweep and to of the letter operation, vary application behalf, rule as in that conforming nearly may be and intent of spirit the zone so are ordinance. contained not at variance Exceptions but a means of principle zoning, accommodating needs zoning practice public exceptional character, *14 welfare and thus the and reasonably to serve common good end. as an the of the to same part integral zoning process cited But the of the variance subsection provided by (c) section of the statute connotation. substantially has different amended, It R . cited supra. S. 40:55-39(c), the relief cir means of where lot is so particular uniquely as that the rule of cumstanced the application ordinance, letter, result to the strict would according “peculiar difficulties” or exceptional practical “excep tional and undue so as accommodate funda hardship,” to mental and individual in the common service rights essential avoid an statutory thus to policy, with interference capricious right private prop and the measure is erty; therefore not discriminatory cases, vicious sense. In such the unnecessary hardship made the basis the remedial action inheres in the par ticular lot. Service needs of adjacent or contiguous lands or the inhabitants of the area surrounding obviously is not a for a Thus, variance. action ground under the pro vision is conditioned a sufficient by basic standard con duct in with the essence of the keeping principle and the. of private right property; subject matter in volves a delegable discretionary administrative function that does not transcend constitutional limitations.
But is not the such case subdivision (d) the cited statute, section of the for a providing “variance” permit to aof “structure or use” in nonconforming cases” “particular reasons,” on the “special recommendation of the local administrative approved agency governing body.
There are two facets here: inquiry (1) scope power; (2) existence delegated vel non of suffi- ciently certain standards constitute the discretionary action administrative rather purely than legislative.
The statute limits the relief to be had under this subsec tion such as be “can (d) without granted substantial detriment public will not good im substantially the intent and pair purpose zone plan and zoning relief pro recommendatory unless the
ordinance.” And undue hardship there confined to cases of cedure provided those particularized in the than inherent lot other particular “variance,” of a true nature the cited (c), subsection accord ordinance uses special prescribed to permissible *15 conduct, g., e. definite standards of to certain and ing Newark, supra, cited v. Adjustment Schmidt Board of of power to delegate the measure assailable as purporting the an invasion of legislative that is at once and domain. one-story would a the “variance” permit
Here purported and a supermarket eight commercial to house building, lot, on situate in a a rear lands stores, parking with large to a medium residence uses contiguous district zoned for with a zone, volume to be constructed in connection business lands subject a tract of which the on development housing the zone Broad thereby along are a extend business part, feet, thus a of 368 Street, Bloomfield, for distance consti- function, a boundarj»', a of zone legislative tuting change a violation the the medium of variance direct through variance would “sub- injunction a statutory against intent the purpose stantially impair zone ordinance.” a variance constitutes the exercise of an The allowance of other owners as “extraordinary property power affecting 226 Adjustment, Lee Board N. C. public.” well as 128, E. 168 A. L. R. 1 Ct. As 107, 37 2d (Sup. case, well considered power was said grant “unnecessary hardship” may a for not be used to variance ordinance, intent and of the very purpose “abrogate an act repeal, if not amend, adopted by partially regularly a create means by the local which the Legislature, frustrated at will by ordinance could be limitless entire local and the administrative authority exceptions”; power amend the ordinance under which it “has no functions. * ** a a No to convert residential section into business permit establishments or to invade district business residential type permit it a busi- is conferred. Therefore cannot sections building ordinance, prohibited for to do so or would ness regulations. its amendment law and not a variance of an * * * building As and' use must harmonize with the new its Bassett, Zoning, 128, purpose ordinance, spirit no variance map change precisely which what a would accom- is lawful plish. does nonconforming privilege It a build- follows that erect nonconforming granted ing building a not be under use Bassett, Zoning, guise permit. variance 201. Action to general purpose is in and intent that effect direct conflict spirit. violence When of the ordinance and does to its such sub- changes they legis- advisable must-be made stantial become body municipality change map which alone can lative allow a legislative It is a in a residential section. business center permit. Bassett, Zoning, matter and not for a variance a situation 125.” 79 N. E. 745, Welch See, also, Swasey, Mass. A., S., N. Norcross v. L. R. Jud. (Sup. 1907); E. Jud. 255 Mass. 150 Board of Appeal, Board Building Prusik v. Appeal Depart 1926); Jud. Boston, 262 Mass. 160 N. E. ment of *16 Board Hartford, Ct. v. Thayer Appeal 1928); 114 of of Ct. Conn. Err. v. 157 (Sup. A. 15, 1931); 273 Heffernan Cranston, 50 R. I. 26, Board Review 144 A. Zoning of of ex State rel. v. Kansas Nigro City, Ct. 674 (Sup. 1929); in 27 W. 2d Banc 95, Mo. 1930); Co., & v. Ostrom Const. R. City Indianapolis Civil of in Banc 1931); 176 N. E. App. (App. Ind. 376, Peterson, 59 N. D. 228 N. W. 104, Livingston Ct. in use -the
Tbe districts is local power lodged to create in limita the changes prescribed regulations, legislature; the the and in boundaries of created tions restrictions ordinance, the districts had conditioned only by upon vote of the in of governing body favorable of two-thirds case board disapproval proposed change by planning a a of or more of lots within protest or the owners by 20% 40:55-35, area. R. S. 40:55-31 and as amended prescribed L. L. 1948, 1221; 1948, 305, 1222. p. p. c. c. by (d)
The amendment which subsection incorporated for the 35 to provide section also modified section prior proposed board of such planning submission to local that sub- so changes regulations, district boundaries section to section 35. (d) necessarily subject im
And, aside the substantial mandate against and the the intent and the zone pairment purpose the cited ordinance, under relief permissible amended, not con 40:55-39, subsection (d) administrative tained a definite and certain primary standard. Relief in cases” and for “special “particular detriment reasons” where “without substantial grantable adminis public good” meaningful does not constitute or action, trative standard rule either alone standing or context, considered in unless confined relation to norm of and undue peculiar difficulty hardship practical in subsection definite terms contained specific (c). terms, These are and indefinite insufficient as quite vague ad limitation the exercise of policy upon delegated ministrative The essential distinction is between authority. to make law and author delegation or discretion directed the execution the law. It is ity that there be or standards requisite specific adequate' administrative action. and unfettered Undefined guide discretion would offend constitutional limitations. against Co., Control Newark Milk State Board Milk cited supra. The terms and “undue “practical difficulty” hardship” narrowness, subsection are defined thus: “exceptional (c) shallowness or of a at the shape specific piece property time of enactment of regulation,” “exceptional topo- conditions or other graphic extraordinary exceptional situation or condition of such piece property.”
Here, standard, for want of a action within the primary is sphere inherently delegated intrinsically legislative. There is subsection no declaration of (d) or rule policy of conduct to the standard of comparable “peculiar and difficulties” practical or exceptional “exceptional undue in subsection (c). embodied in definitive terms hardship” Unlike administrator subsection the discretion of the (c), under determined its own subsection is (d) conception what constitutes detriment to the public “substantial good,” or taken will not provided “relief” “action” given “substantially the “intent and of the zone impair” purpose” ordinance, a common to all sub- zoning proviso divisions of the section that in itself is and indetermi- vague nate as a means of the broad discretion of sub- charting section What relief means of a (d). be afforded variance in cases” and “particular circumstances “special” without harm a “public good” plainly legislative inquiry. “must Applications for variance be de- permits rules; cided to the the board of inasmuch according appeals, as it is not at legislative body, decide liberty what is best for the individual for the community.” Bassett on Zoning (1942).
Justice Jacobs
that there is in
suggests
subsection
(d)
from the
purposed departure
“rigid requirements”
sub
section
But even this standard
“undue
(c).
hardship”
has been deemed inadequate,
now
although
generally accepted
as a
definite and
sufficiently
certain basic standard. Welton
Hamilton,
344 Ill.
82,
N. E. 333
1931);
Sugar v. N. Baltimore Methodist
Church,
Protestant
Md.
An concerns “exception” a “vari legislative process; ance” is the mode of generally the individual safeguarding lot owner against invasion of his fundamental right which would private property ensue from adherence to the strict letter of the regulation, e., i. unneces hardship sary service of the public interest in the exertion of zoning power—such would be greatly disproportionate to the common good the literal accruing enforcement An general rule. “exception” is allowable where the conditions prescribed by local legislative act are met. Foundation, Inc., Devereux case, Zoning Pa.
A. 2d 744 1945), appeal dismissed 326 U. S.
138
enforcement
“A literal
89,
66
90 L.
403 (1945).
S. Ct.
Ed.
variance,
a
to permit
of the ordinance
may
disregarded
be found
must
for an exception
while the conditions
89 N. H.
Cray,
varied.”
v.
not be
Stone
ordinance
483,
1938).
A “variance” for
lot
distinguished
the particular
tions
peculiar
re
hardship
use district. General
other
in the
property
rule of the ordi
a
by
general
lievable
revision
only
Montclair,
v.
Brandon
or
the judicial process.
nance
by
52,
Mass.
311
v. Board
Appeal,
cited
Brackett
supra;
Women’s
Young
1942);
Even the legislative body arbitrarily- local itself not convert the a use of lot from to residence business. single Linden, Linden Methodist City Church Episcopal N. J. L. 188 particular And whether a residence area a should be used as business center is essen a tially legislative Bassett on 125. In question. Zoning, the ordinance, exercise of the local the legislative power by governing may not ac body indulge illusory tion; it must act and without undue discrimina reasonably tion. Reid Development Corporation v. Parsippany-Troy Hills 10 N. J. 229 Township, 40:55-32, finds majority standards adequate
cited supra. It said that the considerations governing here include “the the lessening congestion, securing from safety fire, other panic and the dangers, providing of light and the the adequate prevention avoid- overcrowding, ance of undue concentration of and the population, promotion health, welfare”; morals or general and that the cited section variances, and providing exceptions was de- to the ameliorate of the signed “rigidity” general regulations to permit “individual variances consistent with the public interest and the the zone purposes of and ordi- zoning But, nance.” apart the fact that quite subsection (d) does not use the term and “public interest” to purports sanc- tion variations not detrimental the “public this good,” statement very exemplifies, I suggest, legislative nature of the function thus local assigned administrator. terms,
By explicit policy criteria of conduct set down 32 are section made to the exercise of govern legislative local use power to create districts and to regulate use zoning by “comprehensive plan” designed achieve ends, rule specified variances from regulations thus The latter provided. construction would overthrow the laws” “general use means of zoning by
requirement essence of very which “comprehensive plan” and invest the statutory zoning process, constitutional and In this function. legislative local administrator with would view, of the administrator authority the discretionary outlined, thus police run the gamut whole of “detriment” concept restrained its own only the zone plan and the “public good” “purposes” statutory ordinance, thus the constitutional zoning must unless This be so would subverted. principal essentially be deemed and the' ordinance zone plan here is inviolate; so, if the variance this be granted insupportable. indubitably involve
The criteria set down section and. Certain definite legislative function. exercise *20 avoid a of indispensable, only delegation standards are not to an arbi- guard against the but to legislative power, essential authority. use of the administrative trary delegated my thesis tendered by The not sustain the cases cited do The differences are radical. majority. brethren Fox, Ed. U. Ct. 71 L. In Gorieb v. the “un the read standard of Court Supreme (1926), a a set into local ordinance necessary hardship” creating street, at line, with relation to fixed back or building as far from the street as that occupied by least 60% block, to the reserving city in the council houses existing permit buildings make closer authority exceptions said that could proviso the street. Justice Sutherland to dis “unfairly not construed council permitting be by fixing between lot owners distances unequal criminate for erection of same char buildings from the street circumstances”; nor could it be assumed under like acter be in would “exercised coun advance The coun arbitrarily, inequality.” capriciously, cil 3T-2/3 from landowner to build feet cil allowed a particular line was 42 feet building line. The established the street was that holding the street. The complaining not “the unconsti- injury alleged landowner had suffered tutional feature” of the law. local In Carson Board 321 Mass. Appeals Lexington,
649, 75 N. E. 2d 116 Jud. local 1947), by-law provided for business storage repair” for “garages use, district zoned where board of against appeals “ ” found that public The welfare’ would convenience served, and where such would “substantially exception” “not tend to the status of the The impair neighborhood.” was a bus applicant who had “immediate need for company garage provide facilities” to trans adequate public passenger portation; and there was a not con finding, only public venience and “the necessity, but also that district involved was not suitable for residential holding was purposes.” that it was a case variance, for a for relief under a but provision of the statute the board of “to empowering appeals hear and decide requests special upon which such permits board is under such required pass by-law.” ordinance or This is not unlike our own case of Schmidt v. Board Ad Newark, justment cited and the supra; principle same. Review, And in Olevson Board Zoning 71 R. I.
In the case before the us, now granted variance was rested “the upon proximity of other commercial This is buildings.” “insufficient, deemed standing alone”; and the cause is re- reconsideration, authority manded the administrative to “in the the council town findings and recommendation de- principles” and the of the evidence in the record light opinion. clared in the the a to alter zone makes given purpose reason clear the into resi district the business
boundary, by extending efficacy. district; is therefore without dence and the variance if But, token, grounded same it would be inefficacious by the power related to any police the considerations Quite apart cited supra. enumerated section is no standards, there administrative of sufficient question vary the rule that power dissent elsewhere from extend to the regulations does application zoning 58 Am. Jur. lines of districts. boundary alteration of 1049; 168 A. L. R. 51.
And .the what standard shall reconsideration govern If there hardship. cause? There is contention of undue no were, A variance relief could had under subsection (c). interests private is not otherwise serve purely allowable owner, his financial enrichment g., lot e. particular norm, What through a more use of profitable property. then, administrative function? Grounds shall direct at would large bring which would advantage community in the the administrator into the field legislative comprised facets, all its for there is compass no police power, “detri- save the of that which would work guide avoidance ment” the “in- “public would not good” “impair” zoning ordinance, tent and purpose” zone a and indeterminate standard which combination vague pro- And vides understandable administrative criterion. this no make spot zoning would for indiscriminate contravention use under a principle basic districts “comprehensive” body the local it- plan, legislative self possess. does not
I determination would not overrule the in Monmouth There, Lumber Co. v. Ocean J. Township, line was altered This boundary leg district ordinance. *22 sustained; body’s islative action was and the governing of a variance made disapproval recommendation for the administrative was affirmed. The meaning body essen constitutional of subdivision were not sufficiency (d) tial These were decision. fundamental questions neither raised nor and what said must needs be argued; was considered of the issue light for decision. presented The rule of proceeds stare decisis de hypothesis on cision made after full and consideration of the ample points involved necessarily in the case. Brush Commissioner of Revenue, Internal 300 U. S. 81 L. Ed. S. Ct. 691 (1936).
I would reverse the remand cause judgment direction to enter for plaintiff forthwith judgment vacating variance, both the action of the board recommendatory adjustment the resolution approval adopted town council.
Mr. Chief Justice Yanderbilt and Mr. Justice Brennan in this join dissent.
Heher, J., Yanderbilt, J., Brennan, C. J., concur in reversal and would remand with direction to enter judg- ment for plaintiff. Yanderbilt,
For Justice reversal—Chief Justices Heher, Oliphant, Wacheneeld, Burling, Jacobs Brennan—7.
For affirmance—None.