(dissenting). I cannot agree with the conclusions reached by the majority and feel my views should be at least briefly stated.
The property in question stretches for about 500 feet along the double tracks of the ISTew York & Long Branch Railroad and is approximately 133 feet deep. The plaintiff bought the property in April, 1946, after it had been granted a building permit for the transit mix plant, an office building and a garage. The permit was issued pursuant to an ordinance which had been in effect for 16 years, zoning this land for industrial purposes. It is apparent, I think, that the value of the land to the company was predicated upon business use which was then permitted under the ordinance in existence.
The plant commenced operations in June, 1946, and is still being used. Although it had a permit to do so, the company did not construct the garage but stored some of its trucks in the open within the yard limits of the plant. It now seeks to build a garage to house these trucks and afford them protection from the elements. Permission is denied under the 1949 zoning ordinance constituting the area in question as residential.
Is this ordinance a reasonable exercise of the zoning power in so far as it applies to the premises in question? The authority of the municipality to enact zoning ordinances to lessen congestion in the streets, secure safety from fire, panic and other dangers, promote health, morals and general welfare, provide adequate light and air, prevent the overcrowding of land and buildings and to avoid undue concentration of population, is conferred by R. S. 40:55-33 and is not here questioned. The query, rather, is whether or not the zoning.of the plaintiff’s land as residential and consequently prohibiting it from building a garage to house "its trucks may reasonably be considered to abide by the salutary *80aims and purposes recited in the statute. The net effect of the ordinance, so far as it relates to the plaintiff’s property, is to' deny in part the only appropriate use it can make of the land, which use was consented to and permitted by an ordinance in effect when the purchase of the property was made and by the building permit.
In Duffcon Concrete Products v. Cresskill, 1 N. J. 509 (1949), cited in the majority opinion, we emphasized the power of a municipality to conserve property values and to encourage the most appropriate use of land with regard to physical, economic and social conditions prevailing within the municipality and the region surrounding it. That power was exercised by the municipality when the 1.930 ordinance zoning the plaintiff’s land for industrial use was enacted.
I do not find from the record that a great residential development in this immediate area has taken place. The aerial photograph taken in December, 1950, shortly before the present action was tried and long after the adoption of the 1949 ordinance and which was introduced in evidence, shows that within the township the property in question' is still surrounded by several acres of woodland and open fields and that no dwellings thereon have been constructed.
The plaintiff’s reliance upon the old ordinance and the invitation to proceed with erection of its buildings and plant as expressed in the building permit granted by the township was reasonable and lawful. At the time the plaintiff applied for a new permit to build the garage which had already been authorized, the character of the neighborhood had still not physically been much changed although it had been designated as a residential zone. There is no evidence of congestion of streets, deprivation of light and air, or undue concentration of population presently existing or reasonably foreseeable underlying or justifying the restriction placed upon the plaintiff’s use of its property.
I am compelled to the thought that the 1949 ordinance, under the circumstances here presented, in so far as it applies to the property in question, appears to be unreason*81able and arbitrary and unrelated to the aims and purposes set forth in the zoning act.
I have grave doubts, too, that the building of the garage can be termed an expansion of a nonconforming use. The law in regard seems to be well settled in Kensington Realty Corp. v. Jersey City, 118 N. J. L. 114 (Sup. Ct. 1937), affirmed 119 N. J. L. 338 (E. & A. 1938), where the court said :
“We think it clear that the ‘continuance of a non-conforming use’ is a continuance of the same use and not of some other kind of use.”
Plere there is the same use and no change is made either in kind or in quantity. There is no increase in area or production of the manufacturing plant, nor would the granting of the garage permit create an increase or an expansion. Putting the trucks under cover instead of leaving them in the open constitutes no enlargement or change in the plaintiff’s business. The facility sought is incidental to the plant as it is now being lawfully operated. The attempt at conservation of costly machinery is but an adaptation of a sound business practice. The trucks in question apparently can be stored upon the property and used in the same manner but without garage facilities, the denial of which would seem to work a hardship.
The township, I believe, should be ordered to issue the permit and I would vote to reverse.
Mr. Justice Oliphant authorizes me to state that he concurs in this dissent.
For affirmance — Chief Justice Vanderbilt, and Justices Case, Heher and Burling — 4.
For reversal — Justices Oliphant and Wacheneeld — 2.