# Katobimar Realty Co. v. Webster > Supreme Court of New Jersey · December 12, 1955 · 20 N.J. 114 URL: https://www.frixlaw.com/law-library/cases/9884115 ## Case - **Full name:** Katobimar Realty Company and William J. Thompson, Plaintiffs-Appellants, v. Robert A. Webster, Building Inspector of the Borough of New Providence, and the Mayor and Council of the Borough of New Providence, Defendants-Respondents - **Court:** Supreme Court of New Jersey - **Decided:** December 12, 1955 - **Citations:** 20 N.J. 114; 118 A.2d 824; 1955 N.J. LEXIS 171 - **Precedential status:** Published - **Opinion:** Dissent by Bbenman - **Judges:** Heher - **Cited by:** 54 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9884115 ## How later opinions describe it (automated extraction) - holding that a municipality could not bar all retail commercial uses in an industrial zone ## Opinion text William J. Bbenman, Jb., J. (dissenting). New Jersey has witnessed a marked and salutary change in the judicial attitude toward municipal zoning over the past decade. Long overdue recognition of the legitimate aspirations of the community to further its proper social, economic and political progress, and of the propriety of requiring individual landowners to defer to the greater public good, have replaced the narrow concepts held by former courts. Present-day decisions rightly give maximum play to the philosophy underlying our constitutional and statutory zoning provisions that localities may decide for themselves what zoning best serves and furthers the local public welfare, subject only to the rule of reason forbidding arbitrary and capricious action. See Duffcon Concrete Products v. Borough of Cresskill, 1 N. J. 509 (1949); Lionshead Lake, Inc., v. Township of Wayne, 10 N. J. 165 (1952), appeal dismisssed 344 U. S. 919 , 73 S. Ct. 386 , 97 L. Ed. 708 (1953); Fischer v. Township of Bedminster, 11 N. J. 194 (1952); Guaclides v. Borough of Englewood Cliffs, 11 N. J. Super. 405 (App. Div. 1951); Pierro v. Baxendale, 20 N. J. 17 *130 (1955). Mr. Justice Jacobs summed up the basic approach of those cases in his opinion in the Pierro case: “It must always be remembered that the duty of selecting particular uses which are congruous in residential zones [only residential zones were involved] was vested by the Legislature in the municipal officials rather than in the courts. Once the selections were made and duly embodied in the comprehensive zoning ordinance of 1939 they became presumptively valid and they are not to be nullified except upon an affirmative showing that the action taken by the municipal officials was unreasonable, arbitrary or capricious. * * * * •:= * We are satisfied that at long last conscientious municipal officials have been sufficiently empowered to adopt reasonable zoning measures designed towards preserving the wholesome and attractive characteristics of their communities and the values of taxpayers’ properties.” The instant decision not only departs from the policy of the cited cases in its application of the law to the facts but, of graver concern, does so in language, substantially in haec verba, which did not command majority support in Pierro and appears only in the Pierro dissent. Local governing bodies and their advisors must surely be troubled to know which — the Pierro majority opinion or the Pierro dissent — expresses the prevailing view in this court. And the bewilderment will be the greater because this opinion is filed but a few weeks after Pierro was decided. The prohibition of retail commercial uses in the non-nuisance industrial district was not a 1954 innovation. The local officials believed that the prohibition was accomplished in a 1951 amendment, before plaintiffs acquired their lands. Plaintiffs also thought this was the case, because when they first sought approval of their project they sought a zone change. It was only when the effectiveness of the 1951 amendment to accomplish the purpose was questioned that the more explicit 1954 amendment was adopted. The motivation for the prohibition was the desire to attract non-nuisance industries to the borough to increase tax ratables and support the expanded school needs and greater municipal services incident to the rapid residential growth of the community. The borough emerged after *131 World War II from a primarily rural and farm economy into a fast growing suburban community of modest homes. Erom its 1950 population of 3,500 it has grown to a 1955 population of 6,000. It was feared, and with good reason, that taxes to be realized on modest residential properties would be insufficient to support the mounting cost of schooling and borough government without undue hardship to the individual home owner. Paced with that situation, the governing body intelligently and responsibly gave consideration to ways and means to increase tax revenues without impairment of the essentially residential character of the borough. They hit upon a program of attracting new non-nuisance industries, thereby augmenting ratables without incurring heavy additional expenses for municipal service. Many of the post-war industrial developments are “industrial parks” where operations are limited to non-nuisance types carried on in attractive buildings on large acreages beautifully landscaped and compatible in appearance with fine residential areas. Every motorist of our State has seen and admired these desirable improvements which dot our landscape and vastly enhance its appearance. It was such a development that the borough fathers envisaged. The plan has been a marked success, as the photographs in evidence demonstrate. This type of program as part of a comprehensive zoning plan for communities of the character of New Providence is customarily recommended by professional planners. There was expert evidence that not only are residences incompatible in such a zone but that general retail and commercial business should also be recognized as incompatible with a well planned district designed for non-nuisance industries, numerous disadvantages from such an intermixture are referred to in the evidence. The choice of the 130-acre area for the limited industrial use district was cautiously and purposefully made. The boundaries are a railroad line on the south, and brooks on the east, north and west, thus making a natural separation *132 point between the zone and the surrounding territory. Its proximity to the railroad affords spur lines where needed. The topography is vacant and level, free from trees, stones and the like, and it is accessible to a sewer line. It is also a considerable distance from the primary residence and business centers. The area formed part of a larger area comprising the Business Zone created by the original 1933 zoning ordinance. Eor the almost two decades until 1951 no one located a business there. This was another reason which satisfied the governing body that the highest and best use of the land could be realized only by zoning the segment selected exclusively for limited industrial uses as part of the program to attract such business to the borough. The 1951 ordinance also excluded future residential construction in the new district. There was evidence that this is now customary in many zoning ordinances. Reference was made to such regulations in New York, Berkeley Heights, West Orange, Somerville, Summit and Springfield Township. And the pattern was not new to New Providence. The C Zone created by the 1933 ordinance was a laboratory zone limited to “laboratories devoted to research, design and for experimentation; and fabrication incident thereto.” The ordinance barred retail commercial structures and any business or industrial use other than a laboratory. The zone was highly successful in attracting substantial research enterprises. The expert opinion evidence was that a paramount factor in the success of the zone was the prohibition of commercial uses, and that for like reasons the ban was essential to assure the success of the limited non-nuisance industrial zone. Upon this set of facts I find it impossible to square the majority’s holding with the sustaining in Buffoon of an ordinance excluding all industry, or in Wayne Township of an ordinance barring houses of less than 768 square feet for one-story buildings, or in Bedminster Township of an ordinance fixing a maximum five-acre requirement, or in *133 Englewood Cliffs of an ordinance excluding apartment houses from almost the entire borough, or, particularly, in Pierro of an ordinance excluding motels although the ordinance allowed boarding and rooming houses. Commercial shopping centers are not wholly banned from New Providence. Provision is made for them in the business districts contiguous to residential areas, where they rightly belong. In forbidding them in the district in question, the conclusion is inescapable that New Providence evolved a sound long-range policy designed to achieve a well balanced local economy and in nowise exceeded the zoning authority so to do acknowledged in the cited cases. The majority, using substantially the identical language of the Pierro dissent, viz., “The essence of zoning is territorial division in keeping with the character of the lands and structures and their peculiar suitability for particular uses and uniformity of use within the division,” jumps from that base to the conclusion, that as a matter of law, “Generally, the higher uses are allowable in the less limited use districts, normally so when account is taken of the nature and design of the inherent limitations of the zoning process.” We may grant that zoning practice has been to allow the higher uses in districts zoned for lesser uses, but it escapes me how that practice is raised to a limitation in law upon the scope of municipal powers granted under the constitution and the zoning statutes. The limitation is not to be found in either constitution or statute and, in the nature of things, there is no sound reason why the congruity of uses should be made dependent upon considerations of the place of particular uses, up or down, in the scale of uses. The majority admit this in conceding that higher uses may on occasions be excluded from zones limited to lesser uses, but, other than by saying so, they offer no standard by which to guide municipal officials to know when the local situation will be deemed exceptional by the majority. If well-conceived and carefully thought out zoning plans such as this, so obviously and peculiarly appropriate to further the well-being of the community of New *134 Providence, are to be struck down in this fashion, a grievous blow will be dealt the forward progress of zoning as an instrument for the enhancement of the overall social and economic welfare of our municipalities. I vote to affirm. This dissent is joined in by Mr. Justice Jacobs. For reversal — Chief Justice Vaetdeebilt, and Justices Hehee, Wacheeteeld and Btjblietg — 4. For affirmance — Justices Oliphaett, Jacobs and Beeetetaet — 3. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9884115. Public record. Not legal advice.