The opinion of the court was delivered by BURLING, J.
This is an appeal from a judgment of the Superior Court, Law Division, affirming the action of the Board of Adjustment of the Borough of Rutherford denying the plaintiff a variance from a zoning ordinance to permit the erection of a motor vehicle service station in a residential district. The appeal was taken to the Superior Court, Appellate Division, but has been certified for hearing here on our own motion.
The plaintiff owns a plot of vacant land located at the northwesterly corner of State Highway Route No. 17 and Nevins Street. The plot has a frontage on Route No. 17 of 216 feet and a frontage on Nevins Street of 90 feet and lies within a district restricted to residential use by a zoning ordinance adopted by the Borough on July 16, 1931. The land was purchased by the plaintiff and one Joseph Lanza on May 2, 1946, for the sum of $1,800. On February 9, 1949, the plaintiff purchased Lanza's one-half interest therein for the sum of $1,500 and on March 30, 1949, applied to the Borough's Building Inspector for a permit to erect a motor vehicle service station on the land. The application was denied and an appeal was taken to the Board of Adjustment for a variance from the requirements of the zoning ordinance. The requested relief was denied and an action in lieu of the former prerogative writ of certiorari was then instituted in the Superior Court, Law Division, to review the decision of the Board of Adjustment. The court affirmed the decision of the Board of Adjustment and dismissed the plaintiff's action. The present appeal stems from the latter judgment.
The plaintiff contends that a strict application of the ordinance to his land causes an undue hardship within the meaning of R.S. 40:55-39(c) as amended by L. 1948, c.
"The property was zoned against the use of property as desired by prosecutor when he purchased it and if he did not know it he could easily have ascertained the facts. He quite probably knew of it and purchased with his eyes open, hoping to have an exception made and secured the permit. His failure, therefore, cannot be said to have worked an undue hardship under the circumstances."
The location of the plaintiff's land with respect to surrounding lands and premises is as follows: To the north of plaintiff's
The plaintiff contends that the presence of Route No. 17 has destroyed the residential potentiality of his land and the lands of others fronting on the highway. This argument is predicated upon the thesis that the entire area fronting on Route No. 17 is burdened by the restriction. In Brandon v. Board of Com'rs. of Town of Montclair, 124 N.J.L. 135 (Sup. Ct. 1940); affirmed, 125 N.J.L. 367 (E. & A. 1940), it was decided that a finding of "unnecessary hardship" to an individual owner, due to "special conditions" is a sine qua non to the exercise of the board of adjustment's authority
The plaintiff further contends that R.S. 40:55-39 as amended by L. 1948, c. 305, in force when the board of adjustment made its determination, obviates the necessity of showing that his land is uniquely affected, as prescribed in Brandon v. Board of Com'rs. of Town of Montclair, supra, and reasserted by this court in National House & Farms Ass'n., Inc., v. Board of Adjustment of Borough of Oakland, supra, and Ramsbotham v. Board of Public Works of City of Paterson, supra. Our reading of R.S. 40:55-39(c) as amended by L. 1948, c. 305, leads us to the conclusion that the authority
The general idea of that which we today know as "zoning" existed with the Romans and as early as 1692 in this country. See McQuillen, Municipal Corporations (2d Ed.), Vol. 3, footnotes on p. 404, but its general acceptance and rapid progress was delayed until the present century. Zoning laws are designed to regulate, systematize and stabilize the growth of municipalities and while they occupy a prominent place in municipal thought today, they were not always favorably regarded. The courts of this State were reluctant to recognize zoning insofar as it sought to divide a municipality into districts for various uses, such as residential, mercantile and industrial. Such use zoning was considered to be an unreasonable exercise of the police power. See State ex rel. Ignaciunas v. Town of Nutley, 99 N.J.L. 389 (E. & A. 1924). That attitude continued in our judicial opinions for several years until October 18, 1927, when an amendment was made to the Constitution which provided as follows:
Pursuant thereto the legislature enacted R.S. 40:55-30 et seq. (L. 1928, c. 274), permitting municipalities, by ordinance, to regulate the nature and extent of use of buildings and structures within specifically restricted districts. Art. IV, Sec. VI, par. 2 of the 1947 Constitution, effective January 1, 1948, contains a provision similar to the above cited amendment but extends the zoning authority to include the regulation of "the nature and extent of the uses of land." R.S. 40:55-30 et seq. was amended by L. 1948, c. 305, inter alia for the purpose of extending the zoning authority to cover the use of land pursuant to the 1947 Constitution. More recent pronouncements of our courts reflect the increasing consciousness of the importance of zoning regulations which stabilize the values of properties by restricting them to specified districts, with resulting advantages to the particular districts and the general welfare of the entire region. See Berdan v. City of Paterson, supra; `Duffcon Concrete Products v. Borough of Cresskill, 1 N.J. 509 (1949); Collins v. Board of Adjustment of Margate City, 3 N.J. 200 (1949). The spirit of the zoning act has been to restrict rather than to increase nonconforming uses, and authority to vary the application of the general regulation should be sparingly exercised. Sitgreaves v. Board of Adjustment of Nutley, 136 N.J.L. 21 (Sup. Ct. 1947). The zoning act does not contemplate variations which would frustrate the general regulations and impair the overall scheme which is set up for the general welfare of the several districts and the entire community. This philosophy has become increasingly prevalent since 1927 and is fortified by the language of the 1948 amendment to the zoning act. It is further strengthened by an amendment to the zoning act in 1949. See L. 1949, c. 242.
The power of a board of adjustment to ameliorate the rigors of the application of the general regulation does not extend to a situation, as here presented, which is common to other lands in the neighborhood. The conversion of a residential district into a mercantile district is a legislative function reserved for the local legislative body. Bassett, Zoning (1940), p. 125.
The law indulges the presumption that a zoning ordinance is altogether reasonable in its application; and there rests upon the individual landowner the onus of establishing circumstances justifying a variance from the general rule of the ordinance. Brandon v. Board of Com'rs. of Town of Montclair, supra.
As a jurisdictional prerequisite to alleviating action by the board of adjustment there must be proven unnecessary hardship to the individual landowner. National House & Farms Ass'n., Inc., v. Board of Adjustment of Borough of Oakland, supra.
Finally, the plaintiff attacks the constitutionality of the ordinance on the premise that it makes no provision for motor vehicle service stations to be located anywhere in the Borough. We find no merit in this contention. Section 8A-1 of the zoning ordinance provides as follows:
"Section 8. Business No. 1 Districts:
No use permitted in a Residence District shall be excluded from a Business No. 1 District.
A. There shall be permitted any one or more of the following specified uses:
1. Any retail store or stand where goods are sold or services rendered and where nothing is manufactured, converted or altered except for such retail trade."
We conceive that the foregoing language is broad enough to embrace motor vehicle service stations. Furthermore, it appears that actually there are a number of such service stations in the permitted district in the Borough and that the above section of the ordinance has been interpreted by the borough officials to include such service stations.
The judgment appealed from is affirmed.
For affirmance — Chief Justice VANDERBILT, and Justices CASE, HEHER, OLIPHANT, WACHENFELD and BURLING — 6.
For reversal — None.