Schmidt v. Board of Adjustment of City of Newark, A--81

Citation88 A.2d 607,9 N.J. 405
Decision Date05 May 1952
Docket NumberNo. A--81,A--81
CourtUnited States State Supreme Court (New Jersey)

Joseph Weintraub, Newark, argued the cause for appellants (Charles S. Okin, Newark, attorney).

Joseph A. Ward, Newark, argued the cause for respondents (Charles Handler, Newark, attorney).

The opinion of the court was delivered by


The appeal concerns the propriety of the action taken by the local board of adjustment refusing plaintiffs leave to use their lands at the northeast corner of Lyons Avenue and Clinton Place, Newark, for the operation of a gasoline service station. The ruling was sustained by the Superior Court on a review in lieu of the prerogative writ of Certiorari.

Proceeding on the hypothesis that 'gasoline or oil stations, automobile filling and cleaning stations and public garages while necessary, may be inimical to the public safety and general welfare if located without the due considerations of conditions and surroundings,' section 10 of the municipal zoning ordinance ordains that no permit for such use shall issue 'except upon application first made to the Board of Adjustment,' which is empowered, after hearing 'in the same manner and under the same procedure' as in the case of 'exceptions' to the terms of a zoning ordinance, 'to recommend in writing' to the local governing body that a permit for such use be granted 'if, in its judgment, it will not be detrimental to the health, safety and general welfare of the community, and is reasonably necessary for the convenience of the community.' A 'public garage' is forbidden within a block of a school, hospital, church, orphan asylum, theater or opera house, public library or a public art museum.

The Superior Court sustained this section of the ordinance as against the challenge of constitutional insufficiency, but found that the board of adjustment had failed 'to make the findings required' by that provision and R.S. 40:55--39, as amended by L. 1948, c. 305, p. 1223, and L. 1949, c. 242, p. 779, N.J.S.A., and remanded the cause for further proceedings to that end if plaintiffs should be so advised.

It is now urged: (a) that the ordinance in this respect constitutes an abortive exercise of the zoning power, 'in that it fails to zone the city for the purpose of service stations, by prescribing the districts in which they may be erected'; (b) that if it be deemed an exertion of the general police power 'apart from zoning,' there is no statute which 'authorizes the governing body to delegate the exercise of the police power to the board of adjustment,' which performs a quasi-judicial rather than a legislative function in respect of the right to a variance 'from the terms of an ordinance which in fact zones,' and therefore the power to 'act finally' is nondelegable; (c) that considered as an exercise of the general police power, there is no provision for action by the governing body, and, since an affirmative recommendation by the board of adjustment 'does not carry with it a right to obtain a permit,' it is 'an incomplete act of legislation' and 'invalidly operates to prevent the erection of service stations throughout the city'; and (d) that the particular provision does not provide 'a standard for the guidance of the board of adjustment in giving its advisory opinion' and 'no standard whatever' to control the governing body 'in acting upon a recommendation' of the former, and so it is vicious and nugatory whether considered as a 'zoning ordinance' or an exercise of 'other police power.'

The case of Schnell v. Township Committee of Ocean, 120 N.J.L. 194, 198 A. 759 (Sup.Ct. 1939) is read as requiring the governing body itself to 'exercise the reserve power to deal with service stations' as a nondelegable function. It is said that 'there remains no reason why' such facilities 'should be outside the statutory scheme of prescribed districts and prescribed uses therein,' and there is 'no more reason to limit the number of stations in a business zone than there would be to limit the number of food markets or restaurants' ; and that if the doctrine of the Schnell case 'is to be continued,' then the final authority should reside in the governing body, 'circumscribed by a declared standard,' with the role of board of adjustment purely advisory. DP The questions thus posed call for a reexamination of fundamental principles and the nature of the statutory exercise of the zoning power, in particular the functions of the local board of adjustment.

The amendment of the State Constitution of 1844 adopted at a special election held on September 20, 1927 (article IV, section VI, paragraph 5) did not invest the Legislature with authority not theretofore within its keeping. By article III, paragraph 1 and article IV, section I, paragraph 1 of that Constitution, the people of the State granted to the Legislature full sovereign authority except as therein limited; and this comprehended the police power I.e., the inherent right of sovereignty so to order the affairs of the people as to serve the common essential need. There is no Residuum of sovereign power, apart from the police, invoked by this amendment for the enlargement of the general legislative function as theretofore laid down in the organic law. The police power does not have its genesis in a written constitution. It is an indispensable attribute of our society, possessed by the state sovereignties before the adoption of the Federal Constitution. Mayor, &c., of the City of New York v. Miln, 11 Pet. 102, 9 L.Ed. 648 (1837). Vide Constitution of 1947, article III, paragraph 1; article IV, section I, paragraph 1; article IV, section VI, paragraph 2.

Zoning and kindred regulations 'find their justification in some aspect of the police power, asserted for the public welfare.' Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303 (1926). The police authority does not lend itself to expression in terms of a definitive formula that will automatically resolve every case, for its quality and scope are commensurate with the public exigencies arising from ever-changing social and economic conditions. The Fourteenth Amendment in the domain of state action does not operate as a limitation upon the Quantum of the power, reasonably exercised. It merely conditions the exertion of the power by the demands of due process. And the guaranty of due process requires 'only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.' Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 510, 78 L.Ed. 940 (1934). The public right of reasonable regulation for the common good and welfare is denominated the police power. Generally, the authority coincides with the public need. As said by Chief Justice Shaw: 'It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise.' (Commonwealth v. Alger, 7 Cush. 53, 84, (Sup.Jud.Mass. 1851). The essential content and meaning of the police power and the related constitutional guaranties remain the same; but the application of the power of necessity varies with changing needs and conditions pertaining to the public health, safety, morals, or general welfare. It sanctions measures commensurate with the common material and moral needs; and the correlative restrictions upon individual rights--either of the person or of property--are mere incidents of the social order, considered a negligible loss compared with the benefits accruing to the community as a whole. Indeed, it is to be presumed that a fully compensating individual advantage ensues from the general betterment. While some of the earlier cases seemingly confine the authority to such regulations as are needful for the public health, the public safety, and the public morals, such measures as are fairly requisite for the 'public convenience' and the 'general prosperity' are now considered as within the category. This reserve element of sovereignty embraces action conducive to social well-being. Chicago, B. & Q. Railroad Co. v. Illinois, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596 (1906); Bacon v. Walker, 204 U.S. 311, 27 S.Ct. 289, 51 L.Ed. 499 (1907); Eubank v. Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (1912); Euclid v. Ambler Realty Co., cited supra; Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1927); Nashville, C. and St. L. Railroad Co. v. Walters, 294 U.S. 405, 55 S.Ct. 486, 79 L.Ed. 949 (1935); Mansfield v. Swett, Inc. v. West Orange, 120 N.J.L. 145, 198 A. 225 (Sup.Ct. 1938); Brandon v. Montclair,124 N.J.L. 135, 11 A.2d 304 (Sup.Ct. 1940), affirmed 125 N.J.L. 367, 15 A.2d 598 (E. & A. 1940); Oliva v. City of Garfield, 1 N.J. 184, 62 A.2d 673 (1948); Duffcon Concrete Products v. Borough of Cresskill, 1 N.J. 509, 64 A.2d 347, 9 A.L.R.2d 678 (1949); Lumund v. Board of Adjustment of Rutherford, 4 N.J. 577, 73 A.2d 545 (1950); Reingold v. Harper, 6 N.J. 182, 78 A.2d 54 (1951); Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64, 87 A.2d 9 (1952); State v. Hillman, 110 Conn. 92, 108, 147 A. 294 (Sup.Ct.Err. 1929); Town of Windsor v. Whitney, 95 Conn. 357, 368, 111 A. 354, 357, 12 A.L.R. 669 (Sup.Ct.Err. 1920). The police power has been termed 'one of the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government.' District of Columbia v. Brooke 214 U.S. 138, 29 S.Ct. 560, 563, 53 L.Ed. 941 (1909). To the same effect: Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112 (1911); Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915); Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928).

The exercise of the power is contained by the rule of reason. Arbitrary action is inadmissible. There must be a...

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