dissenting.
Does the state zoning statute authorize a municipality to enact an ordinance whose subject matter is other than that *277permitted under the statute? This is the primary question projected here. The answer clearly is no.
A municipality’s existence and authority are dependent upon the State. A municipality is an arm or agency of the State and has only those powers delegated to it. Robinson v. Cahill, 62 N.J. 473, 496-497 (1973), cert. den. 414 U.S. 976, 94 S.Ct. 292, 38 L.Ed.2d 219 (1973). In question here is the Borough of Little Ferry’s zoning ordinance, and in particular subsection 10:2-3 of Article 10 of that ordinance. The Legislature, exercising its explicit constitutional authority, N.J.Const. (1947), Art. IV, § VI, par. 2, empowered municipalities to adopt zoning ordinances in the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. See N.J.S.A. 40:55D-62.1 As Justice Pashman remarked in Taxpayers Ass’n of Weymouth Tp. v. Weymouth Tp., 80 N.J. 6, 21 (1976), cert. den. sub nom. Feldman v. Weymouth Tp., 430 U.S. 977, 97 S.Ct. 1672, 52 L.Ed.2d 373 (1977), “Nevertheless, municipalities which exercise this power must observe the limitations of the grant and the standards which accompany it.” We must, therefore, examine the Municipal Land Use Law to determine whether it delegates to a municipality authority, within the scope of a zoning ordinance, to compel a property owner to obtain a certificate of occupancy certifying compliance, inter alia, with all non-zoning ordinances.2
Though one of the purposes of the Municipal Land Use Law, N.J.S.A. 40:55D-2(a), is to promote the public health, safety, morals and general welfare, the means by which that goal may be pursued through zoning are limited. The enabling statute confines the contents of a zoning ordinance. See N.J.S.A. 40:55D-65. Included are such items as limiting structures according to their type to specified districts, regulating the use of land and the bulk, height and size of buildings, N.J.S.A. 40:55D-*27865(a), (b); providing for planned developments, N.J.S.A. 40:55D-65(c); and establishing “reasonable standards of performance and standards for the provision” of such improvements as off-street parking, access roads and other facilities of the type for which performance bonds may be required. N.J. S.A. 40:55D-53; N.J.S.A. 40:55D-65(d). None of these permitted contents includes expressly or by implication the authority to condition rerenting for the same use upon supplying a certificate of compliance with codes other than zoning restrictions.
Thus, the majority’s reliance upon the provision in N.J.S.A. 40:55D-65(d) authorizing “reasonable standards of performance” is misplaced for that applies only to those types of improvements expressed in N.J.S.A. 40:55D-53. Moreover, “standards of performance” has a dual meaning under the law. The statute provides that “standards of performance” means
standards (1) adopted by ordinance pursuant to subsection 52d [N.J.S.A. 40:55D-65(d)] regulating noise levels, glare, earthborne or sonic vibrations ... or (2) required by applicable Federal or State laws or municipal ordinances. [N.J. S.A. 40:55D-7]
To the extent that N.J.S.A. 40:55D-65(d) authorizes the incorporation of “reasonable standards of performance” embodied in an ordinance, it applies exclusively to standards expressly referred to, such as regulation of noise levels, glare, earthborne or sonic vibrations, etc. The general reference to municipal ordinances under part (2) of the definition does not apply to ordinances which may be adopted pursuant to N.J.S.A. 40:55D-65(d). Otherwise, part (1) of the definition would be superfluous. It follows that the contents of zoning ordinances may only include “standards of performance” relating to noise levels, glare, earthborne or sonic vibrations, etc.
Zoning essentially involves the demarcation of geographical areas including the nature of structures and uses of property in accordance with a comprehensive plan. Justice Hall commented in Kirsch Holding Co. v. Manasquan Borough, 59 N.J. 241, 253-254 (1971), “Zoning ordinances are not intended and cannot be expected to cure or prevent most anti-social conduct in dwelling situations.” This reasoning was implicit in our recent decision in State v. Baker, 81 N.J. 99 (1979), in which we held *279that a restrictive definition of family under a municipal zoning ordinance must fall because it did not bear a substantial relation to a legitimate municipal zoning goal.
The problem we face in this case was before us in Dresner v. Carrara, 69 N.J. 237 (1976). The Borough of Montvale’s zoning ordinance, as applied, required Planning Board approval before a new tenant would be permitted to occupy a one-story building used as a real estate and insurance office. The prior occupant had used the building for the same purposes. The Planning Board insisted that a certificate of occupancy be obtained. Justice Mountain, writing for a unanimous Court, pointed out that the municipality could not “empower its Planning Board, by municipal legislation, to impose land use regulations upon the occasion of a change in occupancy of particular property, even though there be no accompanying change of use.” Id. at 240. The reason was that the statutes authorizing creation of Planning Boards did not contain a source of such power. In the absence of an enabling act, a municipality has no inherent power to adopt zoning or other land use ordinances. “[I]t may act only by virtue of a statutory grant of authority from the Legislature.” Id. at 241.
Certificates of occupancy may be employed for proper zoning purposes, such as in connection with the initial use of a new structure or a change of use of an existing building. When not incorporated in a zoning ordinance, certificates of occupancy may also be proper instruments to enforce other police power objectives. See Dome Realty, Inc. v. Paterson, 83 N.J. 212 (1980). The State Uniform Construction Code provides for application of certificates of occupancy to insure compliance with that act. N.J.S.A. 52:27D-133.
Although a provision like that challenged here might be valid if passed as a general police power ordinance, it does not fit, as we have seen, within the zoning statute. This is not simply a technical infirmity. Zoning occupies a place in our Constitution apart from the subject of general police power legislation of municipalities. See N.J.Const. (1947), Art. IV, § VI, par. 2. Zoning ordinances, unlike general police power legislation, must *280generally comport with the land use plan element of a master plan. N.J.S.A. 40:55D-62. A zoning board of adjustment has authority to interpret and relax zoning ordinances, which power it obviously does not have with respect to general police power ordinances. N.J.S.A. 40:55D-70. Yet, now the Board of Adjustment will be called upon to determine whether there has been compliance with non-zoning ordinances. Furthermore, municipal codes adopted subsequent to the existence of a building structure might not be enforceable under zoning because of the building’s status as a nonconforming use. See N.J.S.A. 40:55D-68.
The principle that a zoning ordinance should not be used to enforce ordinances adopted under other municipal powers, including the police power, finds support in a well-established rule. In Magnolia Development Co. v. Coles, 10 N.J. 223 (1953), the Court struck down two ordinances as being outside the authority purportedly conferred by R.S. 46:23-1 et seq. (a mapping statute), although the ordinances could have been validly enacted as zoning measures. Chief Justice Vanderbilt wrote for the Court:
If the defendant borough desires to exercise its police powers ... it must do so within the framework of the statutes provided for such purposes .... The defendant municipality has sought to exercise powers accorded to it under these statutes without resorting to them and without giving taxpayers the protection they are afforded thereby. This it cannot do. [10 N.J. at 228; citations omitted]
See also Kligman v. Lautman, 53 N.J. 517, 536-537 (1969). The Legislature has not seen fit to include in the zoning statute authorization to enforce health or other similar ordinances which are not within the categories specified in the zoning statute.
In passing I note, as indicated previously, that the Legislature has recently expressly authorized a municipality to adopt ordinances requiring a certificate of occupancy to assure compliance with maintenance standards in the interest of public safety, health and welfare. L.1979, c. 476, N.J.S.A. 40:48-2.12m. This statute was adopted as an amendment to the general police powers of municipalities, not the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. As so enacted, it confirms the legislative intent that the use of certificates of occupancy to enforce *281housing standards when no change in use or structure is involved should be under the general police and not the zoning power of a municipality.
Furthermore, I have reservations about the constitutional validity of requiring a building inspector’s certificate of compliance with provisions of “such other ordinances of the Borough of Little Ferry as may be applicable.” Little Ferry Ord. No. 375 § 1 (Oct. 20, 1970). The Appellate Division commented that procedural due process requires prior notice and an opportunity to be heard. State v. C. I. B. Int’l, 169 N.J.Super. 69, 72 (1979). Moreover, the need for compliance with such other ordinances as may be applicable may be unreasonably oppressive and unrelated to the proper goals of a zoning ordinance. See Orange Taxpayers Council, Inc. v. Orange, 83 N.J. 246 (1980); Brunetti v. New Milford Borough, 68 N.J. 576, 599 (1975); Modular Concepts, Inc. v. S. Brunswick Tp., 146 N.J.Super. 138, 145-146 (App.Div.1977), certif. den. 74 N.J. 262 (1977). By contrast, the amended Paterson ordinance approved today in Dome Realty, Inc. v. Paterson, 83 N.J. 212 (1980), contains procedural due process protections. The Paterson ordinance provides for notice of specific violations and allows for the issuance of a temporary certificate where there are minor violations only. Any person aggrieved by denial of a certificate is entitled to a hearing before the Director of the Department of Community Development.
I would affirm.
Justice CLIFFORD and Justice POLLOCK join in this opinion.
For reversal:—Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN and HANDLER—4.
For affirmance—Justices CLIFFORD, SCHREIBER and POLLOCK—3.
This act became effective August 1, 1976, L. 1975, c. 291, § 82, replacing the prior zoning law, N.J.S.A. 40:55-30 et seq.
L. 1979, c. 476, N.J.S.A. 40:48-2.12(m), which expressly authorizes municipalities to adopt ordinances calling for certificates of occupancy on change of tenant is immaterial. This statute did not amend the zoning act.