Livingston Tp. v. Marchev
| Decision Date | 30 November 1964 |
| Docket Number | No. A--775,A--775 |
| Parties | TOWNSHIP OF LIVINGSTON, Plaintiff-Respondent, v. Alfred MARCHEV and Ann Marchev, Defendants-Appellants. |
| Court | New Jersey Superior Court — Appellate Division |
James T. Dowd, Livingston, for appellants (Dowd & Dowd, Livingston, attorneys).
Ralph A. Yacavino, Orange, for respondent.
Before Judges CONFORD, KILKENNY and LEWIS.
The opinion of the court was delivered by
LEWIS, J.A.D.
Defendants Alfred Marchev and Ann Marchev, husband and wife, were convicted in the Municipal Court of the Township of Livingston on two charges: on complaint of the township manager for violation of Ordinance No. 46 prohibiting, subject to stated exceptions, the parking of trailers within the municipality; and on complaint of the zoning officer for violation of the local zoning ordinance. They were consolidated for trial.
On appeal to the County Court, and after a trial De novo on the stenographic record, the convictions were affirmed. A reversal of the trial court's determinations is urged before us for three reasons: (1) the prohibitory ordinance is invalid as arbitrary, capricious and unreasonable, and it exceeds the general regulatory powers of the municipality; (2) the parking of a trailer adjacent to a one-family residential dwelling is a permitted accessory use under the local zoning ordinance; and (3) the prosecution failed to prove beyond a reasonable doubt each of the elements of the offenses charged. At oral argument this third point was abandoned.
Succinctly stated, the facts are: Defendants reside in a one-family dwelling at 96 Belmont Drive in an 'R--4' residence district of the Township of Livingston. In October 1962 they purchased a camp trailer, described by the zoning officer as 'a small house trailer.' It is a mobile unit, but not self-propelled, with a trailer hitch for attachment to an automobile. The facility is approximately seven feet long, six feet wide and six feet high; it is self-containing for camping, with sleeping accommodations, a sink and cooking equipment.
The Marchevs' use of their trailer was principally for camping over weekends, and it was only utilized for living purposes when they were away from home on recreational trips. When at home the trailer was generally parked or stored near their house on Belmont Drive. The building inspector testified, Defendants had been notified by the zoning officer, in person and by letter, to remove their parked vehicle.
AS TO ORDINANCE NO. 46. It is entitled 'An Ordinance defining trailers or camp cars and prohibiting the parking or placing of the same within the limits of the Township of Livingston.' The proscriptive language is coupled with an exception. We quote:
That the camping unit in question is a 'trailer' within the definition of that word set forth in said ordinance is not controverted. The complaint against the Marchevs was predicated upon violation of the ordinance in that their camp trailer was stored on their premises in the township but not 'within a building.'
While defendants concede that municipalities may by ordinances regulate trailer camps, camp sites and trailer residences they cite Morris v. Elk Tp., 40 N.J.Super. 34, 122 A.2d 15 (Law Div.1956), and Devine v. Mantua Tp., 28 N.J.Super. 299, 100 A.2d 563 (Law Div.1953), for the proposition that such ordinances are Ultra vires and unconstitutional where they are applied to an individual trailer used as a dwelling upon a lot owned or leased by the owner of a trailer. Thus they argue, The answer is two-fold.
First: The allegedly supportive cases are factually distinguishable and legally not applicable, for they dealt with the licensing power of municipalities under N.J.S.A. 40:52--1(d). In Devine the court noted expressly, 'We are deciding this matter only on the question of the right of the municipality to license and not on its right to regulate in such cases.' 28 N.J.Super., at p. 305, 100 A.2d, at p. 566. We have also examined the Pennsylvania decisions to which we were cited by defendants, and we find them not pertinent since they involve different legislative material.
Second: The Livingston ordinance was enacted pursuant to the broad and comprehensive provisions of R.S. 40:48--2, N.J.S.A. (source L.1917, c. 152, sec. 2, p. 357) which permit a municipality to adopt ordinances for the protection of persons and property and for the preservation of the public health, safety and welfare of the municipality and its inhabitants. Liberal construction thereof is made mandatory by our Constitution of 1947 (Art. IV, Sec. VII, par. 11), and there attaches to such an ordinance a presumption of validity not to be overcome unless the evidence clearly establishes its unreasonableness. Vickers v. Tp. Com. of Gloucester Tp., 37 N.J. 232, 242, 181 A.2d 129 (1962). The judiciary does not pass upon the wisdom of a municipal ordinance, nor does it nullify decisions of a governing body on the subject of local welfare merely because a debatable issue is presented. Ibid. Note also Schmidt v. Board of Adjustment, Newark, 9 N.J. 405, 416, 88 A.2d 607 (1952); Cunningham, 'Control of Land Use in New Jersey by Means of Zoning,' 14 Rutgers L.Rev. 37, 47--48 (1959). It is apparent that the statutory grant of police powers to municipalities encompasses the authority to enact regulatory ordinances for the protection and preservation of property values affecting the general welfare of the community. See Fred v. Mayor, etc., of Old Tappan, 10 N.J. 515, 521, 92 A.2d 473 (1952).
Moreover, current authorities recognize neighborhood aesthetics to be integrally bound to property values and to be relevant considerations in zoning when they bear in a substantial way upon land utilization. United Advertising Corp. v. Borough of Metuchen, 42 N.J. 1, 6, 198 A.2d 447 (1964); Vickers v. Tp. Com. of Gloucester Tp., supra, 37 N.J., at pp. 247--248, 181 A.2d 129; N.Y. Central R.R. v. Borough of Ridgefield, 84 N.J.Super. 85, 93, 201 A.2d 67 (App.Div.1964). Vide 'Zoning, Aesthetics, and the First Amendment,' 64 Colum.L.Rev. 81 (1964); Agnor, 'Beauty Begins a Comeback: Aesthetic Considerations in Zoning,' 11 J.Pub.L. 260 (1962). Municipal zoning legislation is one branch of the State's broad regulatory police power. Schmidt v. Board of Adjustment, Newark, supra, 9 N.J., at p. 414, 88 A.2d 607. Thus, if an objectionable use, such as here involved, may be prohibited under the zoning statute, A fortiori it may be barred by the municipality under the statute vesting it with general regulatory police power. See R.S. 40:48--2, N.J.S.A.; Napierkowski v. Gloucester Tp., 29 N.J. 481, 496, 150 A.2d 481 (1959); Fred v. Mayor, etc., of Old Tappan, supra, 10 N.J., at pp. 520--521, 92 A.2d 473.
Defendants in their brief pose an example as to how the ordinance in the instant case might be unconstitutionally applied to one, such as a transient traveler, who temporarily parks a trailer within the township. We are not here concerned with such a situation. The accused continued the outdoor storage of their vehicle in violation of a municipal regulation with which they were in a position to comply by simply storing the camp trailer in their garage. 'An ordinance that may operate reasonably in some circumstances, and unreasonably in others, is not void In toto, but is enforceable except where in the particular circumstances...
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