Kozesnik v. Township of Montgomery , 24 N.J. 154 ( 1957 )

Heher., J.

(concurring). The “Limited Industrial Zone” delineated by the amendment to the Hillsborough zoning ordinance comprises 684.32 acres owned by the Minnesota Mining and Manufacturing Company and 266 acres owned by others, but so divided as not to be usable by the individual owners for quarrying under the terms of the pertinent regulations. It is stipulated that in view of the provision of the ordinance that a “quarry permit” may be had only by an owner of “at least 200 contiguous acres” in the Limited Industrial Zone, a quarry permit can be had only by Minnesota; and so it is that the 266 acres were made subject to the “quarry use” (although the individual ownerships were such as to render this a purely nominal right) and the alternative preexisting residence and agricultural uses, said to be “worthless” in the circumstances. Indeed, it is affirmed that the Limited .Industrial Zone has “the exact area requested by Minnesota Mining, and was not arrived at by any independent comprehensive study,” but “to benefit one corporate landowner,” and the “terms of the amendment are such that no business or industry other than that of Minnesota Mining can operate in the zone.” And a member of the local planning board, when asked if the board had considered whether the Limited Industrial Zone “should be bigger, smaller or in this area or some other area,” replied: “This was the area that was requested by Minnesota Mining to be rezoned as a limited industrial zone.”

The exclusion of business and trade from residential districts bears a rational relation to the health and safety of the community. Euclid, Ohio v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). But the restriction of this district, zoned for “limited industrial” uses, to stone quarries, residences and agricultural pursuits, excluding light and other industrial uses, not to mention business, is plainly illusory when assessed in the context of the constitutional and statutory considerations to be served by zoning. The amendment to the ordinance is so framed that no business or industry other than Minnesota’s quarrying operation is permissible in the zone and particularly in the area of 266 acres, and thus the classification is arbitrary. As just said, it is conceded that no person or corporation other than Minnesota “could meet the acreage requirement * * * for a quarry permit” in this use district. And Minnesota has a permit, not only to operate a quarry in that zone, but also to erect a large rock crushing plant at a cost in excess of two million dollars.

One of defendants’ own witnesses, Mr. Hugh R. Pomeroy, director of the Westchester County Department of Planning and also a recognized specialist in the field, testified that “rock crushing” is “a part of a quarrying operation” and is to be “regarded as heavy industry of a natural productive type of use”; and he agreed that the land is “submarginal for agricultural purposes” and “not conducive to residential development,” and that “for all practical purposes” the plan would “place the owners of such properties in a position where they have land that is not readily usable for agricultural or residential purposes, and yet under the ordinance no use would be permitted.” And he also conceded that a “nonnuisance-laboratory-type building employing a few employees” would not have “any more unfavorable impact on this community than the quarry use permitted.”

And Mr. Herbert H. Smith, a professional planner and a consultant on such matters to municipalities and governmental units, also a witness for defendants, testified that it was “furthest from our desire” to “discourage nonnuisance type of industry from coming into Hillsborough,” but such was the ease in this Limited Industrial Zone, and a “laboratory-type office building, in a park-like setting” would not “hurt the community,” yet he doubted the “attractiveness of this area for that type of location * * * from the physical characteristic standpoint.”

The use exclusions from this Limited Industrial Zone bear no rational relation to the field of police action comprehended in zoning. The classification is unreasonable and unduly discriminatory, not in keeping with zoning principle and policy. It is fundamental that land use restrictions cannot exceed the public need and the fair requirements of the general good and welfare.

I do not agree that the determination of the particular question should await an application for “another [compatible] specific use.” We are concerned now with basic zoning power; and the issue is ripe for decision.

I concur in the result otherwise, and in the Montgomery Township case as well.

Hei-ier, J., concurring in result.

For reversal — Justices Heher, Waci-ieneeld, Burling, Jacobs and Weintraub — 5.

For affirmance — None.