Brookdale Homes, Inc. v. Johnson

• Decision Date: 15 January 1940
• Docket Number: No. 262.,262.
• Citation: 10 A.2d 477,123 N.J.L. 602
• Parties: BROOKDALE HOMES, Inc., v. JOHNSON, Town Clerk, et al.
• Court: New Jersey Supreme Court

10 A.2d 477

123 N.J.L. 602

BROOKDALE HOMES, Inc.,

v. JOHNSON, Town Clerk, et al.

No. 262.

Supreme Court of New Jersey.

Jan. 15, 1940.

Certiorari proceeding by Brookdale Homes, Incorporated, against J. Cory Johnson, Town Clerk of the Town of Bloomfield, and another, to review a certain zoning ordinance adopted by the town of Bloomfield.

Ordinance set aside.

Argued October term, 1939, before PARKER, BODINE, and PERSKIE, JJ.

William Huck, Jr., of New York City, for prosecutor.

Edward C. Pettit, of Bloomfield, for respondents.

PERSKIE, Justice.

This is a zoning case. The question to be decided is whether an ordinance adopted by the Town of Bloomfield on October 7, 1935, is valid. This ordinance amends the original zoning ordinance of the town which was adopted on November 17, 1930 and provides, so far as is pertinent to the instant case, for a "Small Volume Residential Zone A" wherein, "(b) Heights. No building shall be erected to a height in excess of 35 feet and no building shall be erected with its roof ridge less than 26 feet above the building foundation. A false front, cupola, tower or similar part of a building shall not be considered in computing the minimum height of a building." The ordinance was subsequently amended on July 6, 1936, but the amendment is not involved in this proceeding.

The parties stipulated a greater portion of the facts and the stipulation was, by order of this court, made part of the record. From the return to the writ, the stipulation, and the depositions we learn that prosecutor is a corporation organized under the laws of this state and is engaged in the business of developing land and buildings. It owns several tracts of land in "Small Volume Residential Zone A" in Bloomfield including premises known as No. 104 Renner Avenue. On July 17, 1939, the prosecutor made application to the Inspector of Buildings of Bloomfield for a permit to erect a one family dwelling house on premises 104 Renner Avenue and filed plans and specifications for that building. Those plans and specifications disclosed that the proposed building was to be only 21 feet high from its foundation to its roof ridge. The building inspector accordingly refused to issue the permit upon the ground that the ordinance hereinbefore mentioned prohibited the erection of any building in the zone in question less than 26 feet above the building foundation. Thereupon, we are told, that prosecutor made application on notice to the Chief Justice for a writ of certiorari to review the ordinances under date of November 17, 1930, October 7, 1935, and July 6, 1936. The Chief Justice allowed the writ.

The parties have stipulated that all three ordinances were duly enacted, and prosecutor's contention is based solely on the claim that the ordinance under date of October 17, 1935, is repugnant to the State and Federal Constitutions so far as it fixes a minimum height for buildings. We think the claim, under the circumstances exhibited, is meritorious.

It is settled that an ordinance under the zoning act must bear a reasonable relation to the powers conferred by that act. Phillips v. Township Council, etc., Teaneck, 120 N.J.L. 45, 48, 198 A. 368, affirmed 122 N.J.L. 485, 5 A.2d 698. Restrictions imposed pursuant to the zoning act must tend at least in some degree to promote the public good; they must bear a "substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense." Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 448, 72 L.Ed. 842; Gabrielson v. Borough of Glen Ridge, 13 N.J.Misc. 142, 176 A. 676; Phillips v. Township Council, etc., Teaneck, supra; Phillips Oil Co. v. Municipal Council, etc., Clifton, 120 N.J.L. 13, 197 A. 730; 179 Duncan Avenue Corp. v. Board of Adjustment of Jersey City, 122 N.J.L....