Mansfield & Swett, Inc. v. Town of W. Orange

Decision Date28 March 1938
Docket NumberNo. 248.,248.
Citation198 A. 225,120 N.J.L. 145
PartiesMANSFIELD & SWETT, Inc., et al. v. TOWN OF WEST ORANGE et al.
CourtNew Jersey Supreme Court

[Copyrighted material omitted.]

Certiorari by Mansfield & Swett, Inc., and another, against the Town of West Orange and others, to review a resolution of the planning board of the town rejecting a development plan submitted by the named prosecutor.

Resolution vacated, and cause remanded.

Argued October term, 1937, before BODINE, HEHER, and PERSKIE, JJ.

Edward R. McGlynn, of Newark, for prosecutors. Alfred J. Grosso, of Orange (Milton M. Unger, of Newark, of counsel), for defendants.

HEHER, Justice.

On March 10, 1936, Mansfield & Swett, Inc. (hereinafter referred to as the prosecutor) contracted to purchase from its co-prosecutor, Ridge Holding Co., a tract of land situate in the Town of West Orange, at the northwest corner of Gregory avenue and Northfield road, comprising 4 1/2 acres, and containing an old dwelling house— since demolished—and outbuildings. Shortly thereafter, it prepared and presented to the town's board of commissioners for approval a survey and map delineating a proposed subdivision of the tract into 19 lots and 2 streets, the development to be known as "Shadowlawn." The lands are located in a "residential" zone delimited by the local zoning ordinance; and it is planned to erect thereon 19 dwelling houses for sale at prices ranging between $15,000 and $18,000.

In accordance with the provisions of an existing ordinance, adopted pursuant to the authority bestowed by chapter 235 of the Laws of 1930, Pamph.L.1930, p. 1039, Rev. Stat.1937, title 40:55-1 et seq., Comp.St.Supp.1930, §§ *136—4100D(1) et seq., creating a planning board and investing it with authority "to effect the adoption of a master plan" section 6, R.S.1937, 40:55-7 Comp.St.Supp.1930, § *136—4100D(6) for the municipality, and "to adopt regulations governing the subdivision of land, * * * to approve plats showing new streets or highways and to determine and fix the minimum sizes of lots and to establish building lines," section 11, R.S.1937, 40:55—12, Comp.St.Supp.1930, § *136—4100D(11), and generally to exercise the authority conferred by the cited statute, the municipal governing body, at a meeting held on May 5, 1936, referred the matter to the planning board "for their recommendations in the premises." That body, after public hearing had, "disapproved the proposed plan." The transcript of the minutes incorporated in the return discloses the rejection was "due to the fact" that the plan "does not conform with the developments along Gregory Avenue, between Northfield Road and Mt. Pleasant Avenue, and that the greater number of property owners expressed their opinion objecting to same at public hearing held. * * *"

The proceedings were thereupon brought into this court by certiorari, with the result that the "record" was "remanded to the planning board in order that the grounds of disapproval may be 'stated upon its records' as required by the statute." 192 A. 28, 29, 15 N.J.Misc. 441.

Thereafter, and pursuant thereto, the planning board—by resolution adopted on June 3, 1937—set down the reasons for the disapproving action. In substance, these are (1) that the proposed development is not in keeping with the character of the neighborhood and would so decrease the "rateables of surrounding properties" as to entail financial loss to the municipality; (2) that it would effect "an increase in density of population on the premises in question where none now exists," and would create additional traffic hazards, particularly for school children and the fire department, and place upon the municipality "the burden of additional policing" and "necessitate additional supervision of traffic"; (3) that the proposal is "contrary to the unanimous wish of practically all the property owners between Northfield Road and Mt. Pleasant Avenue," and is "an innovation * * * not deemed beneficial to the municipality or to the neighborhood"; and (4) that approval of the plan "would interfere with safety, health and general welfare of the community."

The primary question for determination is the constitutional validity of the cited enabling statute. The insistence is that it is violative of the due process clauses of the Federal and State Constitutions, in that "it deprives an owner of the proper use of his property." It is said that zoning does not embrace planning, and that the cases classifying municipal zoning as outside the general police power of the state are, by analogy, decisive of the question. Ignaciunas v. Risley, 98 N.J.L. 712, 121 A. 783, affirmed sub nom. Ignaciunas v. Nutley, 99 N.J. L. 389, 125 A. 121; H. Krumgold & Sons v. Mayor, etc., of Jersey City, 102 N.J.L. 170, 130 A. 635.

But we do not perceive the analogy. While planning and zoning are sometimes considered so closely of kin as to constitute a single conception, they do not cover identical fields of municipal endeavor. Although municipal planning embraces zoning, the converse of the proposition does not hold true. They are obviously not interchangeable terms. Zoning may not entirely exclude planning, but it obviously does not embrace planning in its entirety.

Zoning is a separation of the municipality into districts, and the regulation of buildings and structures in the districts so created, in accordance with their construction and the nature and extent of their use. This is the constitutional concept of the term. Article 4, § 6, paragraph 5 of the State Constitution, effective October 18, 1927. It is the dedication of the districts delimited to particular uses designed to subserve the general welfare. It pertains not only to use but to the structural and architectural design of buildings.

Planning, on the other hand, is a term of broader significance. It connotes a systematic development contrived to promote the common interest in matters that have from the earliest times been considered as embraced within the police power. Under the cited statute, section 5, R.S.1937, 40:55-6, Comp.St.Supp.1930, § *136—4100 D(5), the planning board is charged with the duty of adopting "a master plan for the physical development of the municipality, including any areas outside of its boundaries which, in the board's judgment, bear essential relation to the planning of such municipality," particularly in respect to the "general location, character and extent of streets, subways, bridges, waterways, water fronts, parkways, playgrounds, squares, parks, aviation fields," and so forth. The governing body may then, by ordinance, "establish the master plan" so prepared; and it shall thereupon, section 7, R.S.1937, 40:55-8, Comp.St.Supp.1930, § *136—4100 D(7), be "deemed official and conclusive with respect to the location and width of streets, highways and parkways and the location and extent of public parks and playgrounds shown thereon," and is expressly "declared to be established to conserve and promote the public health, safety, morals and general welfare." And the governing body may also, likewise by ordinance, section 11, R.S.1937, 40:55-12, Comp.St.Supp.1930, § *136—4100D(11), empower the planning board "to adopt regulations governing the subdivision of land within its jurisdiction and to approve plats showing new streets or highways and to determine and fix the minimum sizes of lots and to establish building lines, except when already established by the zoning ordinance," whereupon the board becomes invested with the authority to "approve, modify and approve, or disapprove such plat, taking due regard to its conformity with the official map." Section 12 of the act, R. S.1937, 40:55-13, Comp.St.Supp.1930, § *136—4100D(12), lays down the specific standard for the performance of this function. Of course, conformance to the master plan and the general provisions of the. statute is essential. Of this more hereafter. The board may also be given, section 5, "the additional authority and duty of acting as the zoning commission under the full authority", of the zoning act. Chapter 274 of the Laws of 1928, Rev.St.1937, title 40:55-30, et seq., Comp.St.Supp.1930, § *136—4200J(3) et seq.

The state possesses the inherent authority—it antedates the Constitution— to resort, in the building and expansion of its community life, to such measures as may be necessary to secure the essential common material and moral needs. The public welfare is of prime importance; and the correlative restrictions upon individual rights—either of person or of property—are incidents of the social order, considered a negligible loss compared with the resultant advantages to the community as a whole. Planning confined to the common need is inherent in the authority to create the municipality itself. It is as old as government itself; it is of the very essence of civilized society. A comprehensive scheme of physical development is requisite to community efficiency and progress.

To particularize, the public health, safety, order, and prosperity are dependent upon the proper regulation of municipal life. The free flow of traffic with a minimum of hazard of necessity depends upon the number, location, and width of streets, and their relation to one another, and the location of building lines; and these considerations likewise enter into the growth of trade, commerce, and industry. Housing, always a problem in congested areas affecting the moral and material life of the people, is necessarily involved in both municipal planning and zoning. And it is essential to adequate planning that there be provision for future community needs reasonably to be anticipated. We are surrounded with the problems of planless growth. The baneful consequences of haphazard development are everywhere apparent. There are evils affecting the health, safety and prosperity of our citizens that are well-nigh insurmountable because of the prohibitive corrective cost. To challenge the power to give proper...

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