Opinion
Submitted October 27, 1939 —
Decided April 25, 1940.
1. Zoning ordinance adopted prior to action on application for permit taken below is binding, if applicable to property in question.
2. Appellant enclosed its lot and two buildings thereon with a fence, and made application for a license to use the rear of the lot as a public parking yard, which was refused, the district being a residential zone; and appellant argues that the application was improperly denied, since it contemplated the use of vacant land as distinguished from "buildings and structures" ( R.S. 40:55-30.) Held, that under the issue of the case the erection of the fence had no significance; that appellant's lot and buildings thereon are regarded as one lot, all subject to the ordinance in question.
3. The use made of a lot and buildings thereon before passage of a zoning ordinance is the only use which may be made thereof after passage of the ordinance; there can be no enlargement of a non-conforming use.
On appeal from the Supreme Court.
For the appellants, Bleakly, Stockwell, Lewis Zink.
For the respondents, John E. Boswell ( French B. Loveland, of counsel).
This is a companion case to Burmore Co. et al., v. Smith et al., 124 N.J.L. 541 .
In this case appellant, Burmore Co., alone, as owner of the premises involved, seeks to review the judgment of the Supreme Court affirming the judgment of the Board of Adjustment which in turn affirmed the action of the administrative officer (mayor) who refused to recommend to the governing body (Board of Commissioners) the granting of appellant's application for a license to use its lot for the public parking of motor vehicles.
On March 21st, 1938, appellant made application to the mayor of Ocean City, New Jersey, for a license for the public parking of thirty cars or less upon the rear eighty feet of its lot more particularly described in Burmore Co. et al. v. Smith et al., supra. Appellant inclosed its lot and the two buildings thereon with a fence and otherwise complied with the existing ordinance (No. 601, passed May 5th, 1937), concerning the parking of motor vehicles in open air garages, lots or parking stations. But before the judgments under review were entered the city passed its zoning ordinance. By the terms of this ordinance, the parking license sought was prohibited in Zone 1, residential district, in which zone appellant's lot is situate. Appellant is, of course, bound by the provisions of that zoning ordinance. Eastern Boulevard Corp. v. Willaredt, 123 N.J.L. 269 ; 8 Atl. Rep. 688.
Appellant argues that since the power of the city is limited to the regulation of "buildings and structures" ( R.S. 40:55-30), the city could not properly deny its application for a parking lot license which merely contemplated the use of vacant land. Respondents argue that since appellant inclosed its lot and buildings thereon with a fence and since a fence is a structure, the challenged legislation is within the purview of the cited statute, and that to grant the license would be to extend or enlarge a non-conforming use.
In our view of the issue before us, we do not regard the circumstance that the lot and buildings thereon were inclosed with a fence as having any particular significance. The issue here does not relate to the use of the fence as such a structure. Rather does it relate to the use of the lot and buildings thereon inclosed by that fence.
Notwithstanding the various uses made of the lot and buildings thereon at the time of the passage of the zoning ordinance, as pointed out in Burmore Co. et al. v. Smith et al., supra, the fact, as stipulated, is that appellant and respondents regarded appellant's lot and buildings thereon as one lot. The law so regards it. Edwards v. Derrickson, 28 N.J.L. 39, 45. Upon that premise, it seems to us to be utterly illogical to say that the portion of the same lot on which there are two buildings is subject to the zoning ordinance and the remaining portion is not.
The same use which appellant made of the lot and buildings thereon before the passage of the zoning ordinance is the only use which, in the circumstances before us, it may make of its lot and buildings after the passage of the zoning ordinance. Burmore Co. et al. v. Smith et al., supra.
What appellant here sought was to extend or enlarge a non-conforming use. This extended or enlarged non-conforming use was properly denied. What we have written in Burmore Co. et al. v. Smith et al., supra, is applicable to and dispositive of the instant case.
Accordingly, the judgment is affirmed, with costs.
(See dissenting opinion by Donges, J., reported herewith.)
For affirmance — THE CHIEF JUSTICE, TRENCHARD, PARKER, BODINE, PERSKIE, WELLS, WOLFSKEIL, HAGUE, JJ. 8.
For reversal — CASE, DONGES, HEHER, HETFIELD, DEAR, RAFFERTY, JJ. 6.
I am unable to agree with the view of the majority in these cases (reported herewith in 124 N.J.L. 541 and 124 Id. 548) and think there should be a reversal in both cases. R.S. 40:55-34 requires: "Said ordinance and notice of the time and place of hearing thereon shall be published at least once in an official newspaper," c. This ordinance, in section 3 creates five classes of districts or zones. Section 4 provides:
"Boundaries. The boundaries of each of the above created districts or zones are hereby established as shown on a map dated January 26th, 1938, as approved by the Board of Commissioners of the City of Ocean City and on file in the City Clerk's office. In case of uncertainty or disagreement as to the true location of any district or boundary line the determination thereof shall lie with the Board of Adjustment as hereinafter provided."
It will be seen that the ordinance itself did not create the districts or zones and attempt to define them with respect to boundaries. The map, the only thing defining any zones, is not made part of the ordinance, nor was it published with the ordinance. No notice of any kind of the boundaries of the several zones was published. There is nothing in the published ordinance that would give anyone notice as to the boundaries of the zones to be created. It was necessary to look at a detached map in the city clerk's office to ascertain this very important matter. Notice is futile unless the property owner is able to determine from such notice that his property is affected. This would seem to be the obvious purpose of the statutory requirement for publication of the ordinance. Here, within the ordinance, there is nothing that creates any zones. As stated, a detached map, not made a part of the ordinance is the only guide.
Respondents rely upon State v. Morristown, 34 N.J.L. 445, where an ordinance was upheld upon grounds not dispositive of the question here presented. Willets v. Sea Girt, 8 N.J. Mis. R. 479, is also cited, but the ordinance there was one providing for the erection of a boardwalk and it was held that it was not void because it referred to plans and specifications on file, where no injury was done to prosecutor's property.
Breese v. Trenton, 11 N.J. Mis. R. 74 , relied upon by the appellants is likewise not directly in point, but it does lay emphasis on the accuracy of publication of the ordinance and map. In that case the official map on file with the building inspector differed from the map which was published with the ordinance, and the court held that the map which was published must control because that was the one of which the public had notice before the time for protest passed.
Our courts have made a clear distinction between municipal ordinances that are legislative or ministerial and those that are judicial in character. This was first pointed out in Camden v. Mulford, 26 N.J.L. 49, and has been followed in a long line of cases, such as West Jersey Traction Co. v. Board of Public Works, 56 Id. 431; affirmed, 57 Id. 710; Moore v. Haddonfield, 62 Id. 386; Sears v. Atlantic City, 73 Id. 710. In the West Jersey Traction Company case, Mr. Justice Reed states the distinction as follows: "A legislative (ministerial) act must be regarded as one which prescribes a general rule of conduct, while a judicial act is one which imposes burdens or confers privileges in specific cases, * * * according to the discretionary judgment of some person or board as to the propriety of imposing the burden or granting the privilege in the specific case." In Moore v. Haddonfield, supra, Mr. Justice Garrison, speaking for this court, declared that our decisions hold that when personal property, or personal rights, are clearly involved, the rule is plain, and that in case the municipal action then under scrutiny imposed an additional burden upon the land of owners it was judicial in character. It has been uniformly held that in the passing of ordinances judicial in character, notice to the parties affected is essential to validity. So here, notice of the respects in which property is to be affected is an important element. There is no notice unless there is a clear statement of what will be accomplished by the proposed action.
It may be that, in the instant case, it is not shown that the prosecutors were harmed by any insufficient publication, but the question is fundamental. It is whether or not a complete and sufficient ordinance was ever published and passed. I am inclined to think that an ordinance of this character, which relies upon an extraneous document to establish one of its most important features, the boundaries of the various zones, is not a complete ordinance, and cannot be effective to create zones and boundaries in this way. Katz v. Higson et al. (Conn.), 155 Atl. Rep. 507.
This view is strengthened by a consideration of the constitution and of other sections of the Zoning act. By amendment to section 6 of article IV of the State Constitution, it is provided:
"5. The Legislature may 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 exercise of such authority shall be deemed to be within the police power of the State. Such laws shall be subject to repeal or alteration by the Legislature." Pamph. L. 1928, p. 820.
It will be observed that this provision permits legislation under which municipalities may adopt zoning ordinances which limit and restrict to specified districts and regulate therein, buildings and structures. This clearly requires that the statutes adopted under this constitutional provision shall require that the zoning districts be specified in the ordinance adopted thereunder. I think the statutes so provide. In the first section, R.S. 40:55-30, it is provided that "Any municipality may by ordinance, limit and restrict to specified districts,"c. Thus the power to zone is required to be exercised by ordinance and the fair interpretation is that the "specified" districts must be specified by ordinance.
And then in 40:55-35, it is provided "Such regulations, limitations and restrictions may be amended, changed, modified, or repealed, and the boundaries of such districts may be changed, by ordinance." An ordinance being required to change a district, it would seem that a district must also be created by a specific ordinance actually outlining the boundaries of the district or zone. In the instant case, it would be possible to change the districts by changing the map, since the districts are not delineated in the ordinance. I think the ordinance must, in itself, set forth the complete scheme, and that notice to the persons affected is essential to its validity.
For these reasons I am of the opinion that the ordinance is void and that the prosecutors are entitled to their permits.
Mr. Justice Case and Judges Hetfield, Dear and Rafferty have asked me to say that they concur in the view expressed above.