Michaels v. Twp. Comm. Of Pemberton Tp.

• Decision Date: 30 June 1949
• Docket Number: No. L-350.,L-350.
• Citation: 67 A.2d 324
• Parties: MICHAELS v. TOWNSHIP COMMITTEE OF PEMBERTON TP., BURLINGTON COUNTY et al.
• Court: New Jersey Superior Court

67 A.2d 324

MICHAELS

v.TOWNSHIP COMMITTEE OF PEMBERTON TP., BURLINGTON COUNTY et al.

No. L-350.

Superior Court of New Jersey.Law Division.

June 30, 1949.

Suit in lieu of prerogative writ and in the nature of mandamus and certiorari by Ernest Michaels against the Township Committee of the Township of Pemberton in the County of Burlington, and the Township of Pemberton in the County of Burlington, a municipal corporation and another, to set aside an ordinance for the regulation of trailer camps, to set aside a decision of the Committee denying plaintiff's application for a permit, and for other relief.

Judgment for defendants.

James M. Davis, Jr., Mount Holly, for plaintiff.

Alexander Denbo, Burlington, for defendants Township Committee of Pemberton Tp., Burlington County and Township of Pemberton in Burlington County, a municipal corporation.

Jay B. Tomlinson, Bordentown, for defendant Browns Mills in the Pines Improvement Ass'n.

PROCTOR, J.S.C.

This suit, in lieu of a prerogative writ, is one that would have been in the nature of mandamus and certiorari under our former practise. Plaintiff seeks to set aside an Ordinance for the Regulation and Licensing of Trailer and Tourist Camps in the Township of Pemberton, Burlington County, New Jersey, which was adopted April 21, 1948 by the governing body of that municipality. The plaintiff further seeks to set aside the decision of the township committee wherein it denied plaintiff's application for a permit for which the plaintiff applied for the operation of a trailer and tourist camp. Plaintiff further seeks the aid of the court to compel the aforesaid township committee to issue the desired permit to the plaintiff.

The defendants base their denial of the permit to the plaintiff on the ground that plaintiff failed to comply with the health requirements of the aforesaid trailer ordinance and also that the trailer camp site for which the plaintiff seeks a permit is within a restricted residential area as defined by the zoning ordinance adopted by the Township of Pemberton on August 4, 1939.

Plaintiff, in rebutting the contentions raised by the defendants, urges that the aforesaid trailer camp ordinance is unconstitutional and void for the reason that it does not lay down any standard by which the municipal officials shall be governed in the granting or denial of permits provided for in the ordinance; that the defendants in denying plaintiff's application for a permit acted in an arbitrary and capricious manner; and finally, that the zoning ordinance furnished no justification for the defendants' denial of the plaintiff's application for a trailer camp license.

The trial of the case consumed two days. At the hearing there was much conflicting testimony as to whether or not the trailer camp now used by the plaintiff affects the health and safety of the community. The undisputed facts show that the township adopted a zoning ordinance on August 4, 1939, which created a residential district and a business district. It further appeared that subsequent to the enacting of the zoning ordinance the plaintiff established and maintained a trailer camp in that part of the municipality delineated in the zoning ordinance as a ‘Residence District’ and has continued to maintain it up to the present time. It further appeared that on April 21, 1948, the township adopted the Trailer, Tourist Camp Ordinance which provided, inter alia, that no trailer camp could be maintained without a permit. It appeared further that the plaintiff applied for a permit under the trailer ordinance, which application was denied on September 11, 1948. Members of the township committee testified that they ascribed their denial for the reason that the trailer camp site of the plaintiff was located within the restricted area under the zoning ordinance of 1939, and that the camp site did not comply with the health regulations of the trailer ordinance of 1948.

It further appeared that there are now 38 trailers at the site wherein approximately 100 people are living.

On the second day of the trial plaintiff further contended the trailer ordinance was void by reason of the recent decision of the Appellate Division of Edwards v. Mayor and Council of Borough of Moonachie, 3 N.J.Super. 10, 65 A.2d 78 (App. Div. 1949) (not officially reported). In that case, however, it was conceded that the ordinance was solely for the purpose of revenue and not regulation. In the present case, while the ordinance has to do with the raising of revenue, it is also for the purpose of regulation. Therefore, it may be sustained as a proper exercise of police power under R.S. 40:48-2, N.J.S.A. See Prinz v. Borough of Paramus, 120 N.J.L. 72, 198 A. 284. The mere fact that a municipality may collect revenue under an ordinance does not preclude it from exercising its police power under such ordinance to reasonably regulate any business the unrestrained pursuance of which might affect the public health and safety. Certainly, as long as the revenue collected under the ordinance is such an amount as may be reasonably expended in enforcing the regulatory ordinance and for the added burden to the township, the ordinance cannot be said to be one for the raising of revenue only. The present ordinance calls for an annual license fee of $15 for each trailer space, which license fee is for the purpose of revenue. This seems a reasonable amount for the added municipal burden imposed by a trailer camp. In any event, there is no proof before me that it is unreasonable or confiscatory, and the presumption is (until the contrary is shown) in favor of the validity and reasonableness of a properly enacted ordinance. American Grocery Co. v. Board of Commissioners of New Brunswick, 124 N.J.L. 293, 297, 11 A.2d 599.

Plaintiff contends the Trailer Ordinance is unconstitutional in that it vests arbitrary discretion in the governing body with respect to a business without prescribing a uniform rule of action.

The challenged section of the ordinance provides in section 2(c) as follows: ‘The Township Committee shall thereupon make or cause to be made a thorough investigation upon the information contained in the application and other information which the Committee may obtain, and shall determine whether or not such permit shall be granted, and if granted, may fix the terms under which the said permit is granted.’

Plaintiff has cited the case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, which holds that an ordinance which gives arbitrary power to the governing body to give or withhold consent not only as to places but as to persons is intolerable under the constitution.

Plaintiff has also cited the case of Lipkin v. Duffy, 119 N.J.L. 366, 196 A. 434 and South Orange v. Heller, 92 N.J.Eq. 505, 113 A. 697, which holdings are to the same effect. However, it would seem that the present trailer ordinance is not unconstitutional under the authority of the United States Supreme Court case of Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 676, 71 L.Ed. 1228, 53 A.L.R. 1210. The Gorieb case distinguished the Yick Wo case on the ground that in the latter case the ordinance vested uncontrolled discretion in the board of supervisors and this discretion was actually exercised for the express purpose of depriving the petitioner in that case of a privilege that was extended to others. In the Gorieb case a local ordinance divided the city into business and residential districts for the declared purpose of establishing building lines and regulating and restricting the construction and location of buildings and for other purposes. Another ordinance created a set back or building line with relation to the street applicable to all buildings to be erected. The city council by a proviso reserved to itself the authority to make exceptions and to permit the erection of buildings closer to the street. The set back ordinance was assailed as contravening the equal protection clause of the Fourteenth Amendment of the Federal Constitution, in that its provisions enabled ‘the council unfairly to discriminate between lot owners by fixing unequal distances from the street for the erection of buildings of the same character under like circumstances.’

Dismissing this contention, Mr. Justice Sutherland said: ‘We cannot, of course, construe the ordinance as meaning that the power may be thus exerted; nor may we assume in advance that it will be exercised by the council capriciously, arbitrarily, or with inequality. It will be time enough to complain when, if ever, the power shall be thus abused.’

Gorieb v. Fox, supra, was cited with approval by Justice Heher in Brandon v. Board of Com'rs of Town of Montclair, 124 N.J.L. 135, at page 143, 11 A.2d 304, affirmed 125 N.J.L. 367, 15 A.2d 598. However, I do not wish to base my decision on the question of whether or not the trailer ordinance is constitutional. Nor do I wish to base my decision on whether or not the trailer camp site as maintained is a menace to the safety and welfare of the community. As said above, there was conflicting testimony as to this and I do not feel that I am called upon to resolve that issue in arriving at my conclusion in this case. Nor do I feel called upon to determine whether or not the township committee acted arbitrarily or capriciously on that issue. I base my opinion on the ground that the plaintiff's action must fail for the reason that the trailer camp site for which he demands a permit or license is in a concededly residential district as defined in the Zoning Ordinance of 1939, which ordinance does not permit the establishment of trailer camps within a ‘Residence District.’

Plaintiff has urged five reasons why the zoning ordinance furnished no justification...