Ward v. Scott

Heher, J.

(dissenting). The essence of zoning is territorial division according to the character of the lands and structures and their peculiar suitability for particular uses, and uniformity of use within the division. Collins v. Board of Adjustment of Margate City, 3 N. J. 200 (1949); Potts v. Board of Adjustment of Princeton, 133 N. J. L. 230 (Sup. Ct. 1945). Such is the genius and spirit of the constitutional power and the enabling statute. It is basic in zoning as thus provided that the use restrictions be general and uniform in the particular district; an arbitrary deviation from the general rule is inadmissible. Invidious discrimination would constitute, not alone a perversion of the constitutional and statutory zoning authority, but also an infringement of the substance of due process of law and a denial of the equality of right that is secured by the Fourteenth Amendment to the Federal Constitution to persons similarly circumstanced. It is of the very nature of the constitutional and statutory zoning process that all property in like circumstances be treated alike. Brandon v. Montclair, 124 N. J. L. 135 (Sup. Ct. 1940), affirmed 125 N. J. L. 367 (E. & A. 1940); Schmidt v. Board of Adjustment of Newark, 9 N. J. 405 (1952).

The State Constitution of 1947 empowers the Legislature to enact “general laws” under which municipalities other than counties “may adopt zoning ordinances limiting and restricting to specified districts and regulating therein, buildings and structures, according to their construction, and the nature and extent of their use, and the nature and *130 extent of the uses of land, and the exercise of such authority shall be deemed to be within the police power of the State.” Article IV, Section VI, paragraph 2. And the legislative grant of power to the local subdivisions of government is couched in the same terms. R. S. 40:55-30, as amended by L. 1948, c. 305, p. 1221. The local governing body is authorized to divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the statutory policy, and to regulate and restrict the construction and use of buildings and other structures and the use of lands within such districts, provided that “All such regulations shall be uniform for each class or kind of buildings or other structures or uses of land throughout each district, but the regulations in one district may differ from those in other districts.” R. S. 40:55—31, as amended by L. 1948, c. 305, p. 1222.- Such regulations shall be in conformity 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,” and “shall be made with reasonable consideration,' among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout” the municipality. R. S. 40:55—32.

The exercise of the police power is ex necessitate contained by the rule of reason. Restraints upon property cannot be unreasonable or unduly discriminatory. The design of the cited constitutional provision was to reaffirm and define the basic sovereign police power in relation to zoning and to condition its use by definite and certain standards and principles in keeping with its essential nature; and, as recently declared by this court, however broad the police power inherent in sovereignty, its exertion by the use-zoning process *131 must accord with the letter and spirit of the constitutional regulation. Schmidt v. Board of Adjustment of Newark, cited supra.

The zoning provisions of the Constitution of 1947 and its predecessor are cast in identical terms, except that the former expressly includes land uses within the regulatory function; and the grant of power in the same terms is significant of an acceptance of the fundamental limitations of the earlier grant found by the old Court of Errors and Appeals in Brandon v. Montclair, cited supra, and the eases since which have given unquestioned adherence to the principle of that case.

The public right of reasonable regulation for the common good and welfare is denominated the police power. The exertion of this sovereign authority for use zoning is controlled by the constitutional and statutory delineation. The restraint laid upon the individual right—either of person or of property—may not go beyond the public need; and the means employed must be reasonable and appropriate to that end. Arbitrary or invidious distinctions are alien to the constitutional principle of zoning and, as well, the constitutional guaranty of the right of private property. Schmidt v. Board of Adjustment of Newark, cited supra.

In zoning, the question is whether the restriction constitutes a reasonable regulation of the use of the individual property in the public interest as distinguished from an arbitrary interference with the fundamental right of private ownership. The police power may not be exerted in the service of private interests under the cloak of the public good. New Jersey Good Humor, Inc. v. Bradley Beach, 124 N. J. L. 162 (E. & A. 1939); Trenton Water Power Company v. Raff, 36 N. J. L. 335 (Sup. Ct. 1873). See, also, Town of Burlington v. Dunn, 318 Mass. 216 , 61 N. E. 2d 243 (Sup. Jud. Ct. 1945), certiorari denied, 326 U. S. 739 , 66 S. Ct. 51 , 90 L. Ed. 441 (1945). The statute provides for general, uniform and comprehensive use zoning; and the local legislative body is restrained accordingly, quite apart *132 from the operation of the constitutional guarantees against arbitrary interference with the essential right of private property.

“Special exceptions” are permissible by express statutory authority, “in accordance with the provisions” of the local zoning ordinance. R. S. 40:55—-39b, as amended by L. 1948, c. 305, p. 1223 and L. 1949, c. 242 p. 779.

Exceptions to the general regulation reasonably designed to serve the public comfort and convenience or the common good and welfare in keeping with social-economic needs; rather than merely private interests, do not constitute indiscriminate spot zoning in derogation of the constitutional and statutory principle of use zoning. Special uses are allowable under the statute if not in excess of the public need or arbitrary in mode or method. But this involves the exercise of the legislative power; and, unless the discretionary administrative function in this regard be confined by a definite and certain policy and rule of action, as in Schmidt v. Board of Adjustment of Newark, cited supra, the delegation falls as essentially legislative and not transferable to the local administrator. Compare Van Riper v. Traffic Telephone Workers’ Federation of N. J., 2 N. J. 335 (1949); State Board of Milk Control v. Newark Milk Co., 118 N. J. Eq. 504 (E. & A. 1935).

Such exceptions involve the exercise of an original jurisdiction created by the ordinance under the statutory power, to provide for specific cases peculiar in themselves and for special uses in the public interest that in their nature or the particular circumstances are not compatible with regulations that must be general and uniform in their sweep and operation, and to vary the application of the letter of the general rule in that behalf, conforming as nearly as may be to the spirit and intent of the zone plan and the zoning ordinance. Exceptions so contained are not at variance with the principle of zoning, but a means of accommodating zoning practice and public needs exceptional in character, *133 and thus reasonably to serve the common good and welfare as an integral part of the zoning process to the same end.

But the variance provided by subsection (c) of the cited section of the statute has a substantially different connotation. R . S. 40:55-39(c), as amended, cited supra. It is the means of relief where a particular lot is so uniquely circumstanced as that the application of the general rule of the ordinance, according to the strict letter, would result in “peculiar and exceptional practical difficulties” or “exceptional and undue hardship,” so as to accommodate fundamental common and individual rights in the service of the essential statutory policy, and thus to avoid an arbitrary and capricious interference with the right of private property; and the measure is therefore not discriminatory in the vicious sense. In such cases, the unnecessary hardship made the basis of the remedial action inheres in the particular lot. Service of the needs of contiguous or adjacent lands or the inhabitants of the surrounding area obviously is not a ground for a variance. Thus, action under the provision is conditioned by a sufficient basic standard of conduct in keeping with the essence of the principle of zoning and the. right of private property; the subject matter involves a delegable discretionary administrative function that does not transcend constitutional limitations.

But such is not the case with subdivision (d) of the cited section of the statute, providing for a “variance” to permit of a nonconforming “structure or use” in “particular cases” and for “special reasons,” on the recommendation of the local administrative agency approved by the governing body.

There are two facets to the inquiry here: (1) the scope of the delegated power; and (2) the existence vel non of sufficiently certain standards to constitute the discretionary action purely administrative rather than legislative.

The statute limits the relief to be had under this subsection (d) to such as “can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning *134 ordinance.” And unless the recommendatory relief procedure there provided be confined to cases of undue hardship inherent in the particular lot other than those particularized in the cited subsection (c), the true nature of a “variance,” or to permissible special uses prescribed by ordinance according to certain and definite standards of conduct, e. g., Schmidt v. Board of Adjustment of Newark, cited supra, the measure is assailable as purporting to delegate power that is at once arbitrary and an invasion of the legislative domain.

Here the purported “variance” would permit a one-story commercial building, to house a supermarket and eight stores, with a large rear parking lot, on lands situate in a district zoned for residence uses contiguous to a medium volume business zone, to be constructed in connection with a housing development on a tract of which the subject lands are a part, and thereby extend the business zone along Broad Street, in Bloomfield, for a distance of 368 feet, thus constituting a change of zone boundarj»', a legislative function, through the medium of a variance in direct violation of the statutory injunction against a variance that would “substantially impair the intent and purpose of the zone plan and zoning ordinance.”

The allowance of a variance constitutes the exercise of an “extraordinary power affecting other property owners as well as the public.” Lee v. Board of Adjustment, 226 N. C. 107 , 37 S. E. 2d 128 , 168 A. L. R. 1 (Sup. Ct. 1946). As was said in that well considered case, the power to grant a variance for “unnecessary hardship” may not be used to “abrogate the very intent and purpose of the ordinance, amend, if not partially repeal, an act regularly adopted by the local Legislature, and create a means by which the entire ordinance could be frustrated at will by limitless exceptions”; and the local administrative authority

“has no power to amend the ordinance under which it functions. * * * No power to convert a residential section into a business district or to permit business establishments to invade residential *135 sections is conferred. Therefore it cannot permit a type of business or building prohibited by the ordinance, for to do so would be an amendment of the law and not a variance of its regulations. * * * As the new building and' its use must harmonize with the spirit and purpose of the ordinance, Bassett, Zoning, 128, no variance is lawful which does precisely what a change of map would accomplish. It follows that the privilege to erect a nonconforming building or a building for a nonconforming use may not be granted under the guise of a variance permit. Bassett, Zoning, 201. Action to that effect is in direct conflict with the general purpose and intent of the ordinance and does violence to its spirit. When such substantial changes become advisable they must-be made by the legislative body of the municipality which alone can change the map and allow a business center in a residential section. It is a legislative matter and not a situation for a variance permit. Bassett, Zoning, 125.”

See, also, Welch v. Swasey, 193 Mass. 364 , 79 N. E. 745 , 23 L. R. A., N. S., 1160 (Sup. Jud. Ct. 1907); Norcross v. Board of Appeal, 255 Mass. 177 , 150 N. E. 887 (Sup. Jud. Ct. 1926); Prusik v. Board of Appeal of Building Department of Boston, 262 Mass. 451 , 160 N. E. 312 (Sup. Jud. Ct. 1928); Thayer v. Board of Appeal of Hartford, 114 Conn. 15 , 157 A. 273 (Sup. Ct. Err. 1931); Heffernan v. Zoning Board of Review of Cranston, 50 R. I. 26, 144 A. 674 (Sup. Ct. 1929); State ex rel. Nigro v. Kansas City, 325 Mo. 95 , 27 S. W. 2d 1030 (Sup. Ct. in Banc 1930); Civil City of Indianapolis v. Ostrom R. & Const. Co., 95 Ind. App. 376 , 176 N. E. 246 (App. Ct. in Banc 1931); Livingston v. Peterson, 59 N. D. 104 , 228 N. W. 816 (Sup. Ct. 1930).

Tbe power to create use districts is lodged in -the local legislature; and changes in the prescribed regulations, limitations and restrictions and in the boundaries of the created districts may be had only by ordinance, conditioned upon the favorable vote of two-thirds of the governing body in case of disapproval of the proposed change by the planning board or a protest by the owners of 20% or more of lots within a prescribed area. R. S. 40:55-31 and 40:55-35, as amended by L. 1948, c. 305, p. 1221; L. 1948, c. 305, p. 1222.

*136 The amendment of 1948, which incorporated subsection (d) in section 39, also modified section 35 to provide for the prior submission to the local planning board of such proposed changes in district boundaries and regulations, so that subsection (d) is necessarily subject to section 35.

And, aside from the mandate against the substantial impairment of the intent and purpose of the zone plan and the zoning ordinance, the relief permissible under the cited subsection (d) of R. S. 40:55-39, as amended, is not contained by a definite and certain primary administrative standard. Relief in “particular cases” and for “special reasons” where grantable “without substantial detriment to the public good” does not constitute a meaningful administrative standard or rule of action, either standing alone or considered in relation to the context, unless confined by the norm of peculiar practical difficulty and undue hardship in specific and definite terms contained in subsection (c). These are vague and indefinite terms, quite insufficient as a policy limitation upon the exercise of the delegated administrative authority. The essential distinction is between the delegation of the power to make the law and the authority or discretion directed to the execution of the law. It is requisite that there be general or specific standards adequate' to guide administrative action. Undefined and unfettered discretion would offend against constitutional limitations. State Board of Milk Control v. Newark Milk Co., cited supra.

The terms “practical difficulty” and “undue hardship” in subsection (c) are defined thus: “exceptional narrowness, shallowness or shape of a specific piece of property at the time of enactment of the regulation,” or “exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property.”

Here, for want of a primary standard, action within the delegated sphere is inherently and intrinsically legislative. There is in subsection (d) no declaration of policy or rule of conduct comparable to the standard of “peculiar and exceptional practical difficulties” or “exceptional and undue *137 hardship” embodied in definitive terms in subsection (c). Unlike subsection (c), the discretion of the administrator under subsection (d) is determined by its own conception of what constitutes “substantial detriment to the public good,” provided that the “relief” given or “action” taken will not “substantially impair” the “intent and purpose” of the zone plan and zoning ordinance, a proviso common to all subdivisions of the section that in itself is vague and indeterminate as a means of charting the broad discretion of subsection (d). What relief may be afforded by means of a variance in “particular cases” and “special” circumstances without harm to the “public good” is plainly a legislative inquiry. Applications for variance permits “must be decided according to the rules; the board of appeals, inasmuch as it is not a legislative body, is not at liberty to decide what is best for the individual or for the community.” Bassett on Zoning (1942).

Justice Jacobs suggests that there is in subsection (d) a purposed departure from the “rigid requirements” of subsection (c). But even this standard of “undue hardship” has been deemed inadequate, although now generally accepted as a sufficiently definite and certain basic standard. Welton v. Hamilton, 344 Ill. 82 , 176 N. E. 333 (Sup. Ct. 1931); Sugar v. N. Baltimore Methodist Protestant Church, 164 Md. 487 , 165 A. 703 (Ct. App. 1933).

An “exception” concerns the legislative process; a “variance” is generally the mode of safeguarding the individual lot owner against the invasion of his fundamental right of private property which would ensue from adherence to the strict letter of the zoning regulation, i. e., hardship unnecessary to the service of the public interest in the exertion of the zoning power—such as would be greatly disproportionate to the common good accruing from the literal enforcement of the general rule. An “exception” is allowable where the conditions prescribed by the local legislative act are met. Devereux Foundation, Inc., Zoning case, 351 Pa. 478 , 41 A. 2d 744 (Sup. Ct. 1945), appeal dismissed 326 U. S. 686 , *138 66 S. Ct. 89 , 90 L. Ed. 403 (1945). “A literal enforcement of the ordinance may be disregarded to permit a variance, while the conditions for an exception must be found in the ordinance and may not be varied.” Stone v. Cray, 89 N. H. 483, 200 A. 517 (Sup. Ct. 1938).

A “variance” for undue hardship is grounded in conditions peculiar to the particular lot as distinguished from other property in the use district. General hardship is relievable only by a revision of the general rule of the ordinance or by the judicial process. Brandon v. Montclair, cited supra; Brackett v. Board of Appeal, 311 Mass. 52 , 39 N. E. 2d 956 (Sup. Jud. Ct. 1942); Young Women’s Hebrew Ass’n v. Board of Standards and Appeals, 266 N. Y. 270 , 194 N. E. 751 (Ct. App. 1935), rehearing denied 266 N. Y. 672 , 195 N. E. 376 (Ct. App. 1935), appeal dismissed in Gelkom Realty Corp. v. Young Women’s Hebrew Ass’n, 296 U. S. 537 , 56 S. Ct. 109 , 80 L. Ed. 382 (1935).

A “special exception” to or a “variance” from the general regulation is permissible only in rare instances and under exceptional circumstances. This is basic in the zoning process—an attribute indispensable to its integrity. Relaxation of the general rule should be had only for the relief of specific instances, peculiar in their nature. Landowners in the particular use district and the community at large have an interest in the security of the zone plan that may not be arbitrarily set at naught. Potts v. Board of Adjustment of Princeton, cited supra; Thayer v. Board of Appeals, cited supra; Real Properties, Inc. v. Board of Appeal of Boston, 319 Mass. 180 , 65 N. E. 2d 199 , 168 A. L. R. 8 (Sup. Jud. Ct. 1946).

The power exercisable by the governing body under subsection (d) plainly was not designed to be legislative; it may, by resolution, “approve or disapprove” a recommendation for a variance made by the administrator, but it is, in this regard, controlled by the standard of action prescribed for the guidance of that authority. Necessarily, the supervisory function is governed by the self-same criterion; it *139 has relation to administrative action. This is axiomatic. Schmidt v. Board of Adjustment of Newark, cited supra; Lynch v. Hillsdale, 136 N. J. L. 129 (Sup. Ct. 1947), affirmed 137 N. J. L. 280 (E. & A. 1948).

Even the local legislative body itself may not arbitrarily-convert the use of a single lot from residence to business. Linden Methodist Episcopal Church v. City of Linden, 113 N. J. L. 188 (Sup. Ct. 1934). And whether a particular residence area should be used as a business center is essentially a legislative question. Bassett on Zoning, 84, 125. In the exercise of the local legislative power by ordinance, the governing body may not indulge in arbitrary or illusory action; it must act reasonably and without undue discrimination. Reid Development Corporation v. Parsippany-Troy Hills Township, 10 N. J. 229 (1952).

The majority finds adequate standards in R. S. 40:55-32, cited supra. It is said that the governing considerations here include “the lessening of congestion, the securing of safety from fire, panic and other dangers, the providing of adequate light and the prevention of overcrowding, the avoidance of undue concentration of population, and the promotion of health, morals or general welfare”; and that the cited section 39, providing for exceptions and variances, was designed to ameliorate the “rigidity” of the general regulations to permit of “individual variances consistent with the public interest and the purposes of the zone plan and zoning ordinance.” But, quite apart from the fact that subsection (d) does not use the term “public interest” and purports to sanction variations not detrimental to the “public good,” this very statement exemplifies, I suggest, the legislative nature of the function thus assigned to the local administrator.

By explicit terms, the policy and criteria of conduct set down in section 32 are made to govern the exercise of the local legislative power to create use districts and to regulate use zoning by a “comprehensive plan” designed to achieve the specified ends, not to rule variances from the regulations thus provided. The latter construction would overthrow the *140 requirement of use zoning by means of “general laws” and a “comprehensive plan” which is of the very essence of the constitutional and statutory zoning process, and invest the local administrator with the legislative function. In this view, the discretionary authority of the administrator would run the whole gamut of the police power as thus outlined, restrained only by its own concept of “detriment” to the “public good” and the “purposes” of the zone plan and the zoning ordinance, and thus the constitutional and statutory principal would be subverted. This must be so unless the zone plan and the' zoning ordinance be deemed essentially inviolate; and if this be so, the variance granted here is insupportable.

The criteria set down in section 32 indubitably involve the exercise of the legislative function. Certain and. definite standards are indispensable, not only to avoid a delegation of the essential legislative power, but to guard against an arbitrary use of the delegated administrative authority.

The cases cited do not sustain the thesis tendered by my brethren of the majority. The differences are radical.

In Gorieb v. Fox, 274 U. S. 603 , 47 S. Ct. 675 , 71 L. Ed. 1228 (1926), the Supreme Court read the standard of “unnecessary hardship” into a local ordinance creating a setback or building line, with relation to the street, fixed at least as far from the street as that occupied by 60% of the existing houses in the block, and reserving to the city council authority to make exceptions and permit buildings closer to the street. Justice Sutherland said that the proviso could not be construed as permitting the council “unfairly to discriminate between lot owners by fixing unequal distances from the street for the erection of buildings of the same character under like circumstances”; nor could it be assumed in advance that the power would be “exercised by the council capriciously, arbitrarily, or with inequality.” The council allowed a particular landowner to build 3T-2/3 feet from the street line. The established building line was 42 feet from the street. The holding was that the complaining *141 landowner had not suffered injury by “the alleged unconstitutional feature” of the local law.

In Carson v. Board of Appeals of Lexington, 321 Mass. 649 , 75 N. E. 2d 116 (Sup. Jud. Ct. 1947), a local by-law provided for “garages for storage and repair” in a business district zoned against that use, where the board of appeals found that “ The public convenience and welfare’ ” would be “substantially served, and where such exception” would “not tend to impair the status of the neighborhood.” The applicant was a bus company who had “immediate need for garage facilities” to provide adequate public passenger transportation; and there was a finding, not only of public convenience and necessity, but also that “the district involved was not suitable for residential purposes.” The holding was that it was not a case for a variance, but for relief under a provision of the statute empowering the board of appeals “to hear and decide requests for special permits upon which such board is required to pass under such ordinance or by-law.” This is not unlike our own case of Schmidt v. Board of Adjustment of Newark, cited supra; and the principle is the same.

And in Olevson v. Zoning Board of Review, 71 R. I. 303, 44 A. 2d 720 (Sup. Ct. 1945), the administrative standard was couched in like terms. The town council was authorized, “in appropriate cases and subject to appropriate conditions and safeguards,” to “make special exceptions to the terms of any ordinance, * * * in harmony with its general purpose and intent and in accordance with general or specific rules therein contained, or where such exception is reasonably necessary for the convenience or welfare of the public.” There, the granted variation or exception was made applicable only to the “prospective vendee” of the applicant’s property; the limitation was held to be unreasonable and an excess of power, and the variance set aside.

In the case now before us, the granted variance was rested upon “the proximity of other commercial buildings.” This is deemed “insufficient, standing alone”; and the cause is re *142 manded to the administrative authority for reconsideration, findings and recommendation to the town council “in the light of the evidence in the record and the principles” declared in the opinion.

The reason given makes clear a purpose to alter the zone boundary, by extending the business district into the residence district; and the variance is therefore without efficacy. But, by the same token, it would be inefficacious if grounded in any of the considerations related to the police power enumerated in section 32, cited supra. Quite apart from the question of sufficient administrative standards, there is no dissent elsewhere from the rule that the power to vary the application of zoning regulations does not extend to the alteration of the boundary lines of districts. 58 Am. Jur. 1049 ; 168 A. L. R. 51.

And what standard shall govern .the reconsideration of the cause? There is no contention of undue hardship. If there were, relief could be had under subsection (c). A variance is not allowable otherwise to serve the purely private interests of the particular lot owner, e. g., his financial enrichment through a more profitable use of the property. What norm, then, shall direct the administrative function? Grounds which would advantage the community at large would bring the administrator into the legislative field comprised in the police power, with all its facets, for there is no compass to guide save the avoidance of that which would work “detriment” to the “public good” and would not “impair” the “intent and purpose” of the zone plan and zoning ordinance, in combination a vague and indeterminate standard which provides no understandable administrative criterion. And this would make for indiscriminate spot zoning in contravention of the basic principle of zoning by use districts under a “comprehensive” plan, a power the local legislative body itself does not possess.

I would not overrule the determination in Monmouth Lumber Co. v. Ocean Township, 9 N. J. 64 (1952). There, a district boundary line was altered by ordinance. This leg *143 islative action was sustained; and the governing body’s disapproval of a recommendation for a variance made by the administrative body was affirmed. The meaning and constitutional sufficiency of subdivision (d) were not essential to the decision. These fundamental questions were neither raised nor argued; and what was said must needs be considered in the light of the issue presented for decision. The rule of stare decisis proceeds on the hypothesis of a decision made after full and ample consideration of the points necessarily involved in the case. Brush v. Commissioner of Internal Revenue, 300 U. S. 352 , 57 S. Ct. 495 , 81 L. Ed. 691 (1936).

I would reverse the judgment and remand the cause with direction to enter forthwith judgment for plaintiff vacating the variance, both the recommendatory action of the board of adjustment and the resolution of approval adopted by the town council.

Mr. Chief Justice Yanderbilt and Mr. Justice Brennan join in this dissent.

Heher, J., Yanderbilt, C. J., and Brennan, J., concur in reversal and would remand with direction to enter judgment for plaintiff.

For reversal—Chief Justice Yanderbilt, and Justices Heher, Oliphant, Wacheneeld, Burling, Jacobs and Brennan—7.

For affirmance—None.