The opinion of the Court was delivered by STEIN, J.
In this case we consider the validity of a zoning ordinance that purports to authorize a municipal planning board to deny site plan approval for an otherwise permitted use on the basis of the volume of traffic the use is likely to generate. The Appellate Division, observing that the language relied on by the Planning Board was contained in a section of the ordinance entitled "Purpose," concluded that this section was a preamble that improperly delegated zoning authority to the Board. The court declined to give effect to the Purpose clause, and ordered the Board to grant site plan approval. PRB Enterprises, Inc. v. South Brunswick Planning Bd., 205 N.J.Super. 225 (App. Div. 1985). We now affirm the judgment of the Appellate Division.
In February 1983, PRB Enterprises, Inc. (PRB) applied to the Planning Board of South Brunswick for preliminary and final site plan approval for a convenience food store in an area of the town known as "Five Corners." The proposed use for the site was to be a WAWA food store, described by a witness as "a delicatessen oriented, supermarket-type of business, very large product line, geared to the adult community, [and] not to the high margin type of turnover * * *."
The proposed site was located in a C-1 zone, in which permitted uses included "neighborhood retail sales of goods and services."
According to testimony at the Board's hearings, this language was intended to limit commercial uses to those that would not significantly add to traffic congestion at the Five Corners intersection.
PRB's application was considered by the Planning Board during six public hearings held between June and December, 1983. Testimony at the hearings focused on the potential impact of the proposed use on traffic at the intersection. PRB's witnesses testified that the use would have little effect on the existing level of traffic. The Township's Planner and Engineer testified that the proposed use would generate high levels of traffic, and that site plan approval should be denied although the proposed use was among those permitted by the ordinance. The Board denied PRB's application.
The Law Division reversed the decision of the Board, and granted PRB preliminary and final site plan approval with respect to the proposed use. The Appellate Division affirmed
In determining the propriety of the Board's actions, and the validity of the Purpose clause on which it relied, we first consider the characterization of the Purpose clause as a preamble.
Our review of the Purpose clause at issue in this case indicates that its function is different from that of a preamble. Its location in the ordinance is substantially after the enacting clause. Although it generally describes the intended effect of the zoning regulations in the C-1 district, its primary function is to attempt to limit the uses permitted in the district, and to mandate the factors to be considered by the Planning Board in determining whether a use is permitted. In our view, the Purpose clause was intended to be a part of the body of the ordinance, and should be so construed.
Nevertheless, we agree with the Appellate Division that the restrictions contained in the Purpose clause are unenforceable. We note that the testimony offered at the site plan approval hearings demonstrates that the limiting language in the clause created uncertainty as to whether the proposed use, although literally permitted by the ordinance, had been converted to a prohibited use by the requirement that it be "low traffic generating." The Township's witnesses testified that the convenience store was a "medium traffic generator," and was therefore prohibited. PRB's witnesses argued that no commercial use could conform to the "low traffic generating" requirement. The Planning Board concluded that the proposed use would be a "high traffic generator," and was therefore prohibited by the ordinance. We concur with the Appellate Division that the testimony of both the Township's and the applicant's witnesses, as well as the Planning Board's resolution of denial, "reflects the result of * * * imprecision in a zoning ordinance."
The principle defect in the ordinance is that the Purpose clause diverts to the Planning Board the power to determine whether or not certain uses are permitted in the C-1 zone. This delegation of authority is inconsistent with the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -112, which reserves to the governing body the power to enact zoning ordinances, N.J.S.A. 40:55D-62, including the exclusive power to determine the permitted uses of land in the various districts established by the ordinances. N.J.S.A. 40:55D-65. Where a use is not permitted by the zoning ordinance, the statutory scheme permits applicants to seek use variances from the board of adjustment. N.J.S.A. 40:55D-70d. The role of the planning board, with respect to permitted commercial or industrial uses, is the grant or denial of site plan approval. N.J.S.A. 40:55D-37.
The Municipal Land Use Law does grant limited authority to a municipality to delegate to its planning board discretion to consider the suitability of a permitted use for particular sites.
In reviewing conditional use applications, the planning board may deny approval if the application fails to conform to the standards and specifications contained in the ordinance. The ordinance may properly include on-site and off-site traffic considerations among the criteria to be weighed by the planning board. Exxon Co., U.S.A. v. Township of Livingston, 199 N.J.Super. 470, 477 (App.Div. 1985). However, the Land Use Law specifically requires the establishment of standards exhibiting "sufficient certainty and definiteness" as a prerequisite to the Board's valid exercise of its discretionary powers under N.J.S.A. 40:55D-67.
The Planning Board argues that we should construe this ordinance as classifying neighborhood retail stores as a "conditional use" in the C-1 zone, and that we should therefore give effect to the "low traffic generating" requirement as the condition that must be satisfied for the use to be permitted. One flaw in this argument is that the zoning ordinance explicitly describes certain other uses in the C-1 zone as "Uses Permitted as a Conditional Use Subject to Planning Board Approval, under N.J.S.A. 40:55D-67," supra at 4 n. 1, clearly reflecting the governing body's determination that a neighborhood
A more fundamental obstacle to the construction urged by appellant is that this ordinance does not contain "definite specifications and standards * * * set forth with sufficient certainty and definiteness," N.J.S.A. 40:55D-67, that would provide the guidance contemplated by the statute to govern the Planning Board's discretionary authority over conditional uses. The phrase "low traffic generating," on the basis of which the board asserts conditional use authority, is undefined. Moreover, neither the Purpose clause nor the body of the ordinance sets forth any objective standards by which traffic generation can be measured, classified, and applied to each proposed use in a consistent manner. The lack of definite standards in this ordinance compels the conclusion that it does not comply with the requirements established in the Municipal Land Use Law for delegation of conditional use approval to a planning board.
Since the ordinance cannot be construed as establishing neighborhood retail stores as a conditional use in the zone, it is evident that the municipality has impermissibly delegated its zoning authority to the Planning Board. The undefined requirement that uses be "low traffic generating" effectively allowed the Board to grant or deny approval based on its subjective evaluation of a use's impact on traffic congestion in the Five Corners neighborhood. If the governing body intended to vest discretion in the Planning Board to approve or disapprove a particular use within the district, it could do so only by classifying it as a conditional use and enacting clear and ascertainable standards to guide the exercise of the Board's discretion. Otherwise, the power to exclude a category of uses based on traffic considerations remains an incident of the zoning power exercisable only by the governing body. Accordingly, we agree with the Appellate Division that the Purpose clause was an improper delegation of the zoning power to the Planning Board.
For affirmance — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.
Opposed — None.