Frizen v. Poppy

• Decision Date: 04 January 1952
• Docket Number: No. C--1403,C--1403
• Citation: 17 N.J.Super. 390,86 A.2d 134
• Parties: FRIZEN et al. v. POPPY et ux.
• Court: New Jersey Superior Court

Page 390

17 N.J.Super. 390

86 A.2d 134

FRIZEN et al. v. POPPY et ux.

No. C--1403.

Superior Court of New Jersey Chancery Division.

Jan. 4, 1952.

Richard B. Magner, Linden, for plaintiffs.

Henry St. C. Lavin, Woodbridge, for defendants.

FREUND, J.S.C.

The plaintiffs, owners of one-family dwellings in the 'A' zone residential district of the City of Linden, instituted this proceeding to enjoin the defendants from using a dwelling building as a funeral home, upon the ground that such use violates the zoning ordinance. The defendants acquired title to their property in October 1950. The ordinance was in effect long before, since May 1927. The pertinent section provides as follows:

'Sec. 2: A: District--one Family Residence.

'In A--district no building or premises shall be used * * * except for one or more of the following specified uses:

'1. One family dwellings, including the office of a physician, surgeon, dentist, musician or like profession when situated in the same building used by such physician, surgeon, dentist, musician, or like profession as his private dwelling * * *.'

The plaintiffs testified to the residential character of the neighborhood; that, prior to February 1951, the defendants' property was a private dwelling, but since then is being used as a funeral home, resulting in the congregation of people, the assemblage of vehicles and the delivery to and from the premises of the paraphernalia associated with funerals. The defendants themselves did not testify, but the father of the defendant, Clarence F. Poppy, testified that prior to the taking of title, on June 5, 1950, the Department of Buildings of the City of Linden issued to the defendants a certificate of occupancy, certifying that the building conformed to all the requirements of the building code, and at the bottom of the certificate the following notation appears in ink: 'Bldg. to be used as funeral parlor.' Thereafter, the defendants made extensive alterations to the interior, but none to the exterior of the premises. The plaintiffs had no knowledge of the issuance of the certificate of occupancy, nor did they have any notice of the intended use of the property until January 1951, when the defendants erected a sign advertising the premises as a funeral home. Thereupon, 18 property owners, the plaintiffs among them, protested to the municipal authorities and formally petitioned them to prevent continuance of the defendants' operations. A hearing was held, but no affirmative action was taken by the municipality. The following excerpt is from the minutes of the meeting of the common council 'Mr. Monico (evidently a member of the council) stated that the members of the Council fully appreciate the sentiment of the petitioners and at the same time it recognizes the dilemma of the property owner. Mr. Monico added that the Governing Body was not previously requested to pass on the question whether the operation of a funeral parlor business falls within the stipulation 'or like profession' appearing in Item 1, Section 2A of the Zoning Ordinance. Mr. Monico further stated that it would appear that this is a question for the courts to decide.'

And the plaintiffs accordingly filed their complaint.

To maintain the integrity of a residential area against encroachment by an enterprise not within the terms of the zoning ordinance, an owner suffering special injuries may maintain a suit to enjoin such violation. Stokes v. Jenkins, 107 N.J.Eq. 318, 152 A. 383 (Ch. 1930); Yanow v. Seven Oaks Park, Inc., 15 N.J.Super. 73, 83 A.2d 28 (Ch.Div. 1951). A municipality may also. Mayor, &c., Alpine Boro. v. Brewster, 7 N.J. 42, 80 A.2d 297 (1951). Even though an undertaking establishment is not a nuisance per se, Westcott v. Middleton, 43 N.J.Eq. 478, 11 A. 490 (Ch.1887), affirmed 44 N.J.Eq. 297, 18 A. 80 (E. & A. 1888), an ordinance which specifically or by operation excludes such an establishment from residential districts is not void upon the ground of unreasonableness. Jack Lewis, Inc., v. Mayor and City Council of Baltimore, 164 Md. 146, 164 A. 220 (Ct.App.Md. 1933), appeal dismissed 290 U.S. 585, 54 S.Ct. 56, 78 L.Ed. 517.

The occupation of undertaker or funeral director is a business, not a profession; the licensing act refers to it as a business, R.S. 45:7--1 et seq. N.J.S.A.; one who operates an 'undertaking establishment' or 'funeral home' or 'funeral parlor' conducts a business, and an injunction will issue when such use of the premises is in violation of a restrictive covenant or zoning ordinance. Babcock v. Laidlaw, 113 N.J.Eq. 318, 166 A. 632 (Ch.1933); Ex parte Ruppe, 80 Cal.App. 629, 252 P. 746 (Ct.App.Cal.1927); Building Commissioner of Brookline v. McManus, 263 Mass. 270, 160 N.E. 887 (Sup.Jud.Ct.Mass.1928); Bond v. Cooke, 237 App.Div. 229, 262 N.Y.S. 199 (App.Div.1932); Arthur v. Virkler, 144 Misc. 483, 258 N.Y.S. 886 (Sup.1932); Heimerle v. Bronxville, 168 Misc. 788, 5 N.Y.S.2d 1002 (Sup.1938) affirmed without opinion 256 App.Div. 993, 11 N.Y.S.2d 367 (App.Div.1939); Ullrich v. State, 186 Md. 353, 46 A.2d 637, 165 A.L.R. 1107 (Ct.App.Md.1946); Annotation, 165 A.L.R. 1112.

In Bond v. Cooke, supra (237 App.Div. 229, 262 N.Y.S. 201), the zoning ordinance was almost identical with the one involved in this cause. It prohibited the use of any building in the zone except for residence, and when coupled with his dwelling that...