(dissenting). The zoning ordinance of 1939 divided the Borough of Palisades Park into five use districts: “District AA — Residence—One and Two Eamily Dwellings; District A- — Residence; District B — Business; District C — - Light Industry; District D — Heavy Industry.” In District A, multiple family dwellings, group houses, garden-type apartments, and apartment houses are also permissible; and in District AA and District A, certain additional uses are allowed, such as churches, schools or educational institutions “other than privately conducted business or vocational schools,” membership clubs, social and recreational buildings “except those in which the chief activity is a service carried on as a business,” public and private parks, playgrounds and gardens, “accessory buildings,” the professional offices and studios of residents, hospitals, and “boarding and rooming houses,” the former defined as “any dwelling in which more than six persons not related to the owner or occupant by blood or marriage are lodged and boarded for compensation,” and the latter as “any dwelling where furnished rooms are rented to more than six persons for compensation,” excluding the “lodging” of relatives of the owner or occupant by blood or marriage. “Trade” and “business” and uses authorized in District AA and District A are permissible in District B. In District 0, “light industry,” the uses sanctioned in AA, A and B are also allowed; and all such are likewise permitted in District D, “heavy industry.” Certain uses are specifically banned in B, C and D, “trailer camp or trailer park” among them, but not motels.
The site of the proposed 27-unit motel is in District A. By the supplement to the zoning ordinance adopted May 25, 1954, “motels, motor courts, motor lodges, motor hotels, tourist camps, tourist courts, and structures of a similar character intended for a similar use, by whatever name the same may be called, whether one or more stories in height,” are forbidden within the borough.
The preamble to this local legislative act recites that the mayor and council deemed such uses “contrary;,to the best interests of the people of the Borough.” / Conceding that *32motels “as such are admittedly not immoral per se” it is said in argument that it is the “expressed conviction” of the mayor and council that “such structures offer great temptation to the conduct of immoral actions” and the design of the supplement was to “remove such temptation,” and to avoid the “potential evils” attending on occasion the operation of such facilities, unfavorable publicity and police action, and “Eor such valid and legitimate purposes as motels may serve the traveling public, accommodations may be had in the neighboring municipalities of Fort Lee, or in other communities nearby,” thus acknowledging a legitimate public need that must be denied because lax operation of such facilities gives rise to police problems of supervision, a “burden” to be borne by the neighboring communities.
But this community-wide interdiction evinces, I would suggest, a basic misconception of the philosophy of zoning and the constitutional and statutory zoning process. The supplement is ultra vires the local municipal corporation^/
The statutory power, B. S. 40:5 5-30, as amended by L. 1948, c. 305, is to “limit and restrict to specified districts” and to “regulate therein” buildings and structures “according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land,” derived from and necessarily limited by the constitutional grant to the Legislature in the selfsame terms, Article IY, section YI, paragraph 2, “deemed to be within the police power of the State.” All such regulations, B. S. 40:55-31, as amended by L. 1948, c. 305, “shall be uniform for each class or kind of buildings or other structures or uses of land throughout each district, but the regulations in one district may differ from those in other districts.” Such regulations shall be, B. S. 40:55-32, “in accordance with a comprehensive plan,” designed to serve the enumerated public considerations, and shall be made “with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout the municipality.”
*33The essence of zoning, we have so often said, is territorial division according to the character of the lands and structures and their peculiar suitability for particular uses, and uniformity of use within the division. Due process demands that the exercise of the power shall not be unreasonable, arbitrary or capricious, and the means selected for the fulfillment of the policy shall bear a real and substantial relation to that end. There must be a rational relation between the regulation and the service of the common welfare in an area within the reach of the police power. Restraints upon property cannot be exorbitant or unduly discriminator^/ A police regulation that goes beyond the public need is not effective to curtail the rights of person or of private property made the subject of constitutional guaranties. Arbitrary or unreasonable restraints may not be put upon the exercise of the basic right of private property. Schmidt v. Board of Adjustment of Newark, 9 N. J. 405 (1952). Excesses in serving the public end in view are inadmissible. Collins v. Board of Adjustment of Margate City, 3 N. J. 200 (1949).
yC'Thus, the genius of the constitutional and statutory zoning process is the regulation of land and buildings by districts according to the nature and extent of their use; and the particular regulation is not in that category. See Bassett, Zoning, 26, 45. The fields of regulation authorized in state enabling acts are usually height, area, and use of buildings, use of land, and density of population. Hid. 49 et seq. It is fundamental that zoning is not based on the doctrine of common-law nuisance. Zoning regulations and common-law nuisances involve different legal principles. Eaton v. Klimm, 217 Cal. 362, 18 P. 2d 678 (Sup. Ct. 1933); Nailor v. C. W. Blakeslee & Sons, Inc., 117 Conn. 241, 167 A. 548 (Sup. Ct. Err. 1933); Beane v. H. K. Porter, Inc., 280 Mass. 538, 182 N. E. 823 (Sup. Jud. Ct. 1932); Bassett, Zoning, 93.
,. ' And it is generally recognized that in the nature of the business and the accommodations furnished, there is no substantial difference between motels or bungalow courts and hotels or multiple dwellings. Zoning ordinances per*34mitting the operation of hotels or multiple dwellings in certain areas have been held to apply with equal force to the maintenance of motels or bungalow courts. 22 A. L. R. 2d 798.
In Long v. Norton Township, 327 Mich. 627, 42 N. W. 2d 764 (Sup. Ct. 1950), it was held that a motel designed to accommodate transients was a “multiple dwelling” within the meaning of a zoning ordinance permitting such a dwelling to be erected and maintained within a certain area. And in People ex rel. Grommon v. Hedgcock, 106 Colo. 300, 104 P. 2d 607 (Sup. Ct. 1940), involving an application to compel the issuance of a permit for the construction of a bungalow court in a “business” district, where a hotel or other multiple dwelling was permitted, it was said that there was little, if any, difference in the use of a hotel or multiple dwelling and a bungalow court, and the “police power, which is the legal basis for zoning legislation, must constantly be reconciled with the legitimate use of private property, in harmony” with constitutional guaranties.
Here, my brethren say: “(A)s we view the terms of the 1939 ordinance the Borough contemplated the exclusion of hotels, motels and similar businesses from the residential zones without, nevertheless, curbing the right of dwelling house owners or occupants to use their premises for boarding and rooming house purposes”; and “If this classification by the Borough has no reasonable basis then it must fall as the plaintiffs contend; * * *.”
But in District A, as shown supra, “multiple family dwellings,” “group houses” and “garden-type apartments” are permissible uses, and “boarding and rooming houses,” as well.
/ It cannot be that motels are beyond effective regulation. They are now in general use throughout the country, providing in many areas reasonably priced, comfortable living facilities on a par with hotel service, in keeping with the highest standards of conduct — in many cases serving a distinct public need. See, e. g., Summer Cottagers’ Association of Cape May v. City of Cape May, 19 N. J. 493 (1955); *35also Schermer v. Fremar Corporation, 36 N. J. Super. 46 (Ch. Div. 1955). The fact that there are occasional operational faults and lapses does not justify the complete suppression of the use as a public nuisance, or otherwise a peremptory requirement in the essential public interest; there is no showing here that such is the case. Compare Menger v. Pass, 367 Pa. 432, 80 A. 2d 702 (Sup. Ct. 1951). If and when the need arises, the police power may be exerted to supply the remedy.
Duffcon Concrete Products v. Borough of Cresskill, 1 N. J. 509 (1949), is not to the contrary. There, the ordinance excluded “all heavy industry” from a “small residential community * * * comprising about 1,300 acres and having a population of approximately 2,300 persons,” divided into four zones, three entirely residential and the fourth, “D,” for “commercial districts for business centers,” all in “an effort to retain” the community’s “residential character”; and the holding was that there is no constitutional or statutory principle enjoining a municipality in the adopting of a “comprehensive zoning scheme * * * to set apart a portion of its territory for heavy industrial use without regard to its suitability therefor,” and “What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously.” The Chief Justice continued:
“The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago, and based in many instances on considerations of geography, of commerce, or of politics that are no longer significant with respect to zoning. The direction of growth of residential areas on the one hand and of industrial concentration on the other refuses to be governed by such artificial lines“Sound social, economic and governmental policy dictates a separation, where possible, of residential areas and industrial areas.”
*36Such is the ratio decidendi of Cresskill. There were geographical and physical characteristics of the area, situated as it is on the western slope of the Palisades, and “extensive bottom lands” of the valley available for industrial purposes, justifying the zoning scheme as comprehending, R. S. 40:55-32, supra, “the most appropriate use of land throughout such municipality.”
,.' But here we have, by the supplement to the ordinance, not a regulation, but rather a prohibition of the motel use throughout the community, in a residence zone by express provision open to multiple-family dwellings, group houses, garden-type apartments, and boarding and rooming houses, and in the business and industrial zones as well; and so, I submit, the rule of the supplement is utterly unreasonable, arbitrary and discriminatory, at odds with the constitutional and statutory zoning policy and violative of the basic standards of due process and equal protection. See Professor Haar’s penetrating analysis of the principles determinative of the issue of discrimination, In Accordance with a Comprehensive Plan, 68 Harvard L. R. 1154 (1955). Even motels of more than one story are banned. There is in all this no distinction of substance reasonably related to any of the constitutional and statutory considerations to be served by zoning; the classification is illusive and unreal. • See Weininger v. Borough of Metuchen, 133 N. J. L. 544 (Sup. Ct. 1946), affirmed 134 N. J. L. 562 (E. & A. 1946); First Church of Christ, Scientist v. Board of Adjustment of Newark, 127 N. J. L. 325 (Sup. Ct. 1941), affirmed 128 N. J. L. 376 (E. & A. 1942); Schnell v. Township Committee of Ocean, 120 N. J. L. 194 (Sup. Ct. 1938); Schmidt v. Board of Adjustment of Newark, supra.
1 would affirm the judgment.
Oliphant and Burling, JJ., join in this opinion.
For reversal — Chief Justice Vanderbilt, and Justices Waoheneeld, Jacobs and Brennan — 4.
For affirmance — Justices Hehek, Oliphant and Burling —3.