Town of Bloomfield v. New Jersey Highway Authority

Vanderbilt, C. J.

(dissenting). I disagree with the holding of the majority of the court that in the erection of gasoline stations and restaurants the New Jersey Highway Authority is not subject to the provisions of municipal zoning ordinances.

There is no question but that the Highway Authority had the power to condemn the land in question for the construction of a service area to be used in connection with the Parkway since the Legislature has the power to provide for the condemnation of property to be devoted to the public use, even where such use may be proprietary, City of Trenton v. Lenzner, 16 N. J. 465, 470 (1954).

It does not follow, however, that all property that has been validly condemned is exempt from municipal regulation. *250 Regardless of how desirable such services may be for the convenience of travellers upon the Parkway, the furnishing of gasoline, food and drink constitutes a proprietary function. In Carroll v. Board of Adjustment of City of Jersey City, 15 N. J. Super. 363, 367 (App. Div. 1951), the court held:

“The proposed use of the entire building is admittedly for office purposes. Such use is clearly a use for the purpose of business, and the use for ‘business of any kind’ is prohibited by the ordinance. We find no merit in the argument that the use for office purposes ceases to be a use for the purpose of business, merely because the use is made by a governmental agency.”

In O'Brien v. Town of Greenburgh, 239 App. Div. 555 , 268 N. Y. S. 173 (App. Div. 1933), affirmed without opinion 266 N. Y. 582 , 195 N. E. 210 (Ct. App. 1935), the court enjoined a municipality from erecting a garbage disposal plant in a district where such a use was prohibited, holding that such a use was a corporate as distinguished from a governmental function:

“The general authority conferred on the defendants to establish disposal plants did not involve an express or an implied authority to establish them, or any of them, in violation of zoning ordinances adopted pursuant to the same source of power — -the Legislature, and under which rights of individuals have become fixed.” (268 N. Y. S., at page 177)

To this same effect see Taber v. City of Benton Harbor, 280 Mich. 522 , 274 N. W. 324 (Sup. Ct. 1937); 8 McQuillin, Municipal Corporations, sec. 25.15; Annotation 171 A. L. R. 325. It thus appears even where the business activity is to be carried on by a public body the courts recognize that it is not exempt from municipal regulation.

Here, however, the case is even stronger; the operation of the restaurants and gasoline stations in question will be carried on as a profit-making enterprise by private corporations or individuals who are to lease the property from the Authority. Clearly their operations are subject to general municipal regulation, such as sanitation and the police power generally, including zoning ordinances.

*251 Nor can the legislative declaration that the operation and maintenance of such projects constitute the performance of “an essential governmental function” support the view of the majority. The Legislature cannot change the nature of an enterprise merely by labelling it as an essential governmental activity when patently it does not fall within that category, Wendlandt v. Industrial Commission, 256 Wis. 62 , 39 N. W. 2d 854, 856-857 (Sup. Ct. 1949).

I would hold that in the erection of these service areas the Highway Authority is subject to local zoning ordinances.

For dismissal — Justices Heher, Oliphant, Burling, Jacobs and Brennan — 5.

For reversal — Chief Justice Vanderbilt and Justice Wachenfeld — 2.