Lionshead Lake v. Wayne Tp., Passaic County

• Citation: 80 A.2d 650,13 N.J.Super. 490
• Decision Date: 27 April 1951
• Docket Number: No. 6,6
• Parties: LIONSHEAD LAKE, Inc., v. WAYNE TP., PASSAIC COUNTY.
• Court: Superior Court of New Jersey

Page 490

13 N.J.Super. 490

80 A.2d 650

LIONSHEAD LAKE, Inc., v. WAYNE TP., PASSAIC COUNTY.

No. 6.

Superior Court of New Jersey

Law Division.

April 27, 1951.

Reuben P. Goldstein, Jersey City, attorney for plaintiff (Archibald Kreiger, Paterson, of counsel).

Markley & Broadhurst, Jersey City, attorneys for defendant.

Stickel & Stickel, by Fred G. Stickel, III, Newark, amicus curiae on behalf of the defendant.

DAVIDSON, J.S.C.

This proceeding in lieu of prerogative writ seeks to set aside the provisions of the zoning ordinance of the Township of Wayne with respect to the minimum size requirements of dwellings, plaintiff charging that the ordinance is unreasonable and constitutes an invalid exercise of the police power of the municipality.

The matter came before this court some time ago on motion for summary judgment and its then determination is reported in 8 N.J.Super. 468, 73 A.2d 287, the Appellate Division, however, holding in 9 N.J.Super. 83, 74 A.2d 609, that summary judgment was precluded, as a factual issue had been properly presented.

After a painstaking inquiry into the facts, it is difficult to perceive any genuine or material dispute. On July 12, 1949, defendant adopted a revised zoning ordinance covering the entire township, which was to be divided into four districts, namely, Residence District 'A', Residence District 'B', Business District and Industrial District. The ordinance, under section 3, subdivision (d), 'Minimum Size of Dwellings,' provided that: 'Every dwelling hereafter erected or placed in a Residence 'A' District shall have a living-floor space, as herein defined, of not less than 768 square feet for a one story dwelling; of not less than 1000 square feet for a two story dwelling having an attached garage; of not less than 1200 square feet for a two story dwelling not having an attached garage. For the purpose of this section the second floor shall have a ceiling height of not less than 7 feet, measured at the eaves from the floor to the underside of the rafters.'

As the same requirement for minimum size of dwellings is set forth for Residence 'B' Districts under section 4, paragraph (d), and by specific reference is incorporated in Business Districts under section 5, paragraph (e), and Industrial Districts under section c, paragraph (b)--1, the result is that a uniform minimum size of dwellings, in accordance with the standards particularly described for Residence 'A' Districts, as above set forth, prevails throughout the entire municipality.

N.J.S.A. 40:55--30 provides that:

'Any municipality may by ordinance, limit and restrict to specified districts and may regulate therein, buildings and structures according to their construction, and the nature and extent of their use, and the exercise of such authority, subject to the provisions of this article, shall be deemed to be within the police power of the state. * * *

'The authority conferred by this article shall include the right to regulate and restrict the height, number of stories, and sizes of buildings, and other structures, the percentage of lot that may be occupied, the sizes of yards, courts, and other open spaces, the density of population, and the location and use and extent of use of buildings and structures for trade, industry, residence, or other purposes.'

N.J.S.A. 40:55--32 clearly provides the basis for a proper determination of the present controversy, and it reads as follows: 'Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.'

Through the years there has been a gradual broadening in the legal concept of valid zoning restrictions, and, as was held in Duffcon Concrete Products v. Borough of Cresskill, 1 N.J. 509 at page 513, 64 A.2d 347, at page 349; 9 A.L.R.2d 678 (1949): 'What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously.'

This goes beyond a finding based strictly on the police power, other than general welfare, and establishes a test grounded in the community use of the land in the municipality, with due consideration to all general conditions and needs, present and reasonably to be anticipated in the region. It is, accordingly, necessary to obtain a broad perspective of the municipality and the region in which it is located.

The Township of Wayne is in the County of Passaic, lies generally about three miles northwest of the City of Paterson, and embraces an area of 25.34 square miles, with a population of 11,000. The municipality includes several sizeable lakes within its borders, the one on plaintiff's property comprising 145 acres, and there are a large number of summer or vacation homes and a number of dwellings occupied only during the summer months. Originally a farming section, there are now real estate developments and subdivisions, some business and light industry, little heavy industry, and generally it may be considered a rather widely scattered and sparsely settled residential community, the evidence establishing that the built-up portions constitute about 12% Of the area of the township.

Plaintiff, attacking the zoning ordinance as unreasonable, is met by a presumption that the ordinance is reasonable and for the public good, and he must bear the burden of establishing the contrary. Brandon v. Board of Com'rs of Town of Montclair, 124 N.J.L. 135, 11 A.2d 304 (Sup.Ct.1940); affirmed 125 N.J.L. 367, 15 A.2d 598 (E. & A. 1940); Lumund v. Board of Adjustment of Borough of Rutherford, 4 N.J. 577, 73 A.2d 545 (1950).

The minimum size requirement throughout the defendant municipality for a one story dwelling under the ordinance now questioned is 768 sq. ft., indicating a normal 24 32 foot building, and the cost of erection is from $11,000 to $12,000 mass-produced, and 20% More for individual construction, and the testimony, confirming general acceptance, is that but 30% Of the population can afford homes costing over $10,000, the remaining 70% Being necessarily restricted to the purchase of homes costing less than that figure.

The ordinance, in its present form, therefore practically provides that no house costing less than a certain sum may be erected in the entire community, let alone a specified area, and this it cannot legally do. Brookdale Homes, Inc., v. Johnson, 123 N.J.L. 602, 10 A.2d 477 (Sup.Ct. 1940); affirmed 126 N.J.L. 516, 19 A.2d 868 (E. & A. 1940). No person under the zoning power can legally be deprived of his right to build a house on his land merely because the cost of that house is less than the cost of his neighbor's house. Ibid.

Dwellings are erected on about a dozen widely separated areas, ranging all the way from a sparsely settled community along the river, known as Riverview, to highly developed, costly and exclusive communities, such as Ridgewood Acres, Preakness Park Manor and Pines Lake, where the homes cost from $30,000 to $75,000.

In the several residential communities the dwellings which meet or exceed the specified square footage minimum requirement range from 50% To 100%. As a practical matter, it is pertinent to note that the building inspector, produced as a witness for defendant, testified that from the time he assumed office on January 1, 1946, to the adoption of the ordinance on July 12, 1949, he issued 1305 building permits, and but 67 were for dwellings of less than 768 sq. ft.

In the entire defendant township about 70% Of the dwellings meet or exceed the minimum square footage requirement of the ordinance under attack, and the remaining 30% Are below. While plaintiff produced no recognized public health expert, the testimony indicated no direct connection between health and square footage, except as to provision for adequate sanitary and sewerage services, which, of course, are regulated and controlled by other municipal ordinances.

The New Jersey Code of Minimum Construction Requirements for One- and Two-Family Dwellings provides that:

'Living rooms shall have an area not less than 150...