Kirsch Holding Co. v. Borough of Manasquan

Decision Date23 July 1970
Citation268 A.2d 333,111 N.J.Super. 359
PartiesKIRSCH HOLDING COMPANY, a corporation of the State of New Jersey, Plaintiff, v. THE BOROUGH OF MANASQUAN, a municipal corporation of the State of New Jersey, Defendant.
CourtNew Jersey Superior Court

Theodore D. Parsons, Jr., Red Bank, for plaintiff (Parsons, Canzona, Blair & Warren, Red Bank, attorneys).

John D. Wooley, Manasquan, for defendant.


The problem of dealing with group rentals for the summer season is one which has beset most, if not all, of the municipalities bordering on and adjacent to the seashore. As these resort municipalities grew, housing units useable only for summer occupancy were erected and rented by their owners to persons desirous of enjoying the many advantages of New Jersey's famed beaches. The owners of these units soon found that it was more lucrative to rent to groups of persons rather than to families, since the rents realized could be greater due to spreading the amount to be received among several persons. The end result, while financially beneficial to the landowners, adversely affected the great majority of the populace. Noise, obscene and profane language, wild parties, immorality, lewd conduct, drunkenness, parking and traffic congestion, all contributed to the destruction of the peace and quiet which was the objective of most of the residents. Family vacationists, with children, were exposed to the problems aforementioned, which originated in great part from the housing units that had been rented to groups.

In an attempt to curb these undesirable conditions the various municipalities adopted ordinances having to do with disorderly conduct, etc., under the police powers, but the implementation thereof proved to be difficult due primarily to lack of enforcement. The next step to combat the evil was the adoption of ordinances under the police powers which banned group rentals and which restricted to families the summer rental of these household units. These ordinances were declared to be invalid in Larson v. Mayor, etc. Spring Lake Heights, 99 N.J.Super. 365, 240 A.2d 31 (Law Div.1968), because of the definition of 'family,' as set forth in the ordinance, and because they went beyond the public need to be served as unnecessarily regulating and prohibiting otherwise lawful conduct. The renting to groups, in and of itself, was not invalid, and this court held that the end did not justify the means.

The municipalities then sought another approach. They amended their zoning ordinances to prohibit what this court declared was excessive of their police powers. The Borough of Manasquan adopted such an amendment, and this litigation is directed to the validity thereof. The amendment was adopted March 9, 1970, and provides, among other things:

Sec. 20. A 'family' as used in this ordinance shall be deemed to mean one or more persons related by blood or marriage living together as a single housekeeping unit, or a collective number of persons living together in one house, whose relationship is of a permanent and distinct domestic character, and cooking as a single housekeeping unit. This definition shall be deemed to include maids, servants or other employees of one or more members of the family. This definition shall not include any society, club, fraternity, sorority, association, lodge, combine, federation, group or organization, nor include a group of individuals whose association is temporary and resort-seasonal in character or nature.

Sec. 62A. No house, dwelling, building, structure of enclosure, or any part of a house, dwelling, building, structure, or enclosure within the Borough of Manasquan shall be used or be permitted to be used or be tented to for use or be rented by for use, as living quarters or sleeping quarters, or for living purposes or sleeping purposes, by or to any society, club, fraternity, sorority, association, lodge, combine, federation, group, or organization or to any person or member on behalf of the same or to any group or collection of persons who are unmarried or who do not qualify as a family as defined in ARTICLE III, Sec. 20 of the Zoning Ordinance as herein amended.

3. The Zoning Map which is part of the Zoning Ordinance of the Borough of Manasquan referred to in the title hereof is hereby amended so that Lots, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and the most southwesterly 100 feet of Lot 1 in Block 93, as shown on the current Tax Map of the Borough of Manasquan, shall be included in the R--2 residential zone.

Plaintiff owns real estate in Manasquan. For several years prior to the adoption of the aforesaid amendment it has rented housing units to persons and groups of persons not within the definition of 'family' as set forth in the amendment. It also alleges that prior to the adoption of the amendment it has rented for the 1970 summer season properties to persons not within the definition of 'family.' It has been notified that Manasquan plans to prosecute violations of the amendment, notwithstanding prior leases and notwithstanding alleged nonconforming uses. It contends it will be subject to irreparable harm if the amendment is enforced because it will be unable to re-rent the units heretofore leased and will be unable to procure more rental income which would be realized by renting to groups rather than to families. It also charges that the amendment arbitrarily prohibits rental to a class of persons who do not fall within the definition of 'family,' exceeds the zoning power of a municipality, is not reasonably related to zoning, the definition of 'family' is vague, and the amendment violates plaintiff's constitutional rights. It seeks an injunction against the enforcement of the ordinance and an adjudication that the ordinance be declared invalid.

As a basic proposition of law, municipalities have no inherent authority to enact zoning ordinances except as derived from the State by statute. This power has been conferred by the Legislature by virtue of N.J.S.A. 40:55--30. For such an ordinance to be valid it must bear a reasonable relation to the powers conferred by that Act, and must tend in some degree to promote the public good. It must bear a substantial relation to the public health, morals, safety or welfare in its proper sense, and such an ordinance is presumed to be reasonable--the one attacking its validity has the burden of establishing the contrary. Lionshead Lake v. Wayne Tp., 13 N.J.Super. 490, 80 A.2d 650 (Law Div.1951). Zoning is based on an enabling act which sets forth specific purposes and classifies homogeneous and compatible uses into separate districts under a comprehensive plan so as to enable a community to exclude specific uses which could not be so excluded under the municipality's police powers. Andover Tp. v. Lake, 89 N.J.Super. 313, 214 A.2d 870 (App.Div.1965). The power to zone against a particular use is clear. Roman Catholic Diocese v. Ho-Ho-Kus, 47 N.J. 211, 220 A.2d 97 (1966) (schools in residential districts); Napierkowski v. Gloucester Tp., 29 N.J. 481, 150 A.2d 481 (1959) (trailer homes); Pierro v. Baxendale, 20 N.J. 17, 118 A.2d 401 (1955) (hotels and motels).

It is obvious that the purpose of the amendment in question is to regulate objects specifically enumerated at proper zoning objectives. The general welfare concept with regard to zoning has received a broad definition by our courts. Pierro v. Baxendale, Supra. The general provision relating to health, morals and general welfare should be examined in the light of existing circumstances in a community, and in determining the question of reasonableness cognizance must be taken of the problem to be solved by the municipality- --for example, the requirement necessary to minimize the offensive character of the Conduct to be regulated. State v. Mundet Cork Corp., 8 N.J. 359, 86 A.2d 1 (1952). At oral argument it was stipulated that the facts as found by the court in Larson, supra, would apply...

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