N. T. Hegeman Co. v. Mayor and Council of Borough of River Edge

• Decision Date: 08 December 1949
• Docket Number: No. L--6333,L--6333
• Citation: 69 A.2d 767,6 N.J.Super. 495
• Parties: N. T. HEGEMAN CO. v. MAYOR & COUNCIL OF BOROUGH OF RIVER EDGE.
• Court: New Jersey Superior Court

Page 495

6 N.J.Super. 495

69 A.2d 767

N. T. HEGEMAN CO. v. MAYOR & COUNCIL OF BOROUGH OF RIVER EDGE.

No. L--6333.

Superior Court of New Jersey Law Division.

Dec. 8, 1949.

Walter T. Wittman, Hackensack, for plaintiff.

Charles W. Weleck, Hackensack, for defendant.

WAESCHE, J.S.C.

Plaintiff prosecutes this civil action to determine the legal status of an ordinance of the Borough of River Edge, adopted May 2, 1949, entitled 'An Ordinance Regulating the Subsequent Location of Buildings and Other Structures on the North Side of Main Street Between Bogert Road and Kinderkamack Road in the Borough of River Edge, Bergen County, New Jersey'. The ordinance establishes a building set-back line 67 feet from the northerly side-line of Main Street; 30 feet from the easterly side-line of Bogert Road; and 30 feet from the westerly side-line of Kinderkamack Road. The ordinance prohibits the erection of any building, or other structure, between the set-back lines, as established by the ordinance, and the street lines. The northerly side of Main Street, between Bogert Road and Kinderkamack Road, is one long block--approximately 1,000 feet. It is zoned for business to a depth of 200 feet. The set-back restrictions in the aforesaid ordinance affect only land in that one business block.

Main Street is 50 feet wide. Its southerly side, between Bogert Road and Kinderkamack Road, is two blocks long. This side of the street lies in a single-family residence zone, except the westerly end, which lies in a business zone, where it fronts on State Highway Route No. 4.

The legitimate, or authentic, zoning ordinance of the Borough of River Edge requires all buildings, in a residence zone, to set back 30 feet form the abutting street line. In a business zone, the zoning ordinance requires all buildings to set back 25 feet from the abutting street line. The zoning ordinance was adopted August 9, 1943, pursuant to the provisions of Article 3, Chapter 55, of Title 40 of the Revised Statutes, N.J.S.A. (This is the Article of the Revised Statutes which authorizes municipalities to adopt zoning ordinances.)

Section 2, of the ordinance here under review, expressly states that it was passed pursuant to Article 3, Chapter 55, of Title 40 of the Revised Statutes, N.J.S.A. However it was not adopted pursuant to Section 40:55--35, which is the section of said Article 3 that authorizes amendments to zoning ordinances.

Only two buildings are located on the northerly side of Main Street between Bogert Road and Kinderkamack Road. The building nearer Bogert Road, extending approximately 890 feet along Main Street, is known as the Huffman-Boyle building. It is occupied by a large store where home furnishings and appliances are sold, and by a variety of small stores: a shoe store, bakery, candy shop, drug store, delicatessen, and several other stores. The other building, which is nearer Kinderkamack Road, is a large A & P super-market. These two buildings stand about 120 feet apart, and they set back 67 feet, or more, from the northerly side of Main Street. The vacant space between the two buildings and the unoccupied frontage between the buildings and the northerly side of Main Street is paved and reserved for parking automobiles. There are several single-family dwellings on the southerly side of Main Street, which set back about 30 feet from the street-line.

Bogert Road and Main Street intersect on the northeasterly side of State Highway Route No. 4. Bogert Road ends there, but Main Street continues, on the opposite side of Route No. 4, into Hackensack. As a general rule, the traffic on all three thoroughfares entering this intersection is heavy, and there are, of course, several lanes of converging traffic at these cross-roads, resulting in a risky criss-crossing of traffic. A captain in the police department of River Edge testified that, in his opinion, a building, if erected at the corner of Bogert Road and Main Street, would seriously interfere with the view of motorists on Main Street, who are on the lookout for traffic emerging from Bogert Road onto Route No. 4, and that such a building would also obstruct the view of motorists on Bogert Road watching for traffic coming out of Main Street onto Route No. 4.

The northerly side of Main Street and the easterly side of Bogert Road form an acute angle, where they meet, of 66 degrees, 41 minutes, and 30 seconds. The crotch, formed by their intersection, however, is rounded, so that traffic from Main Street can more readily turn and enter Bogert Road--or vice versa. The irregular lot, or plot of land, located in the nook, at the juncture of these two streets, is owned by the plaintiff. The lot is approximately 55 feet long on Bogert Road, and has an average width of 22 feet. The whole lot lies between the street lines and the building set-back lines established by the ordinance here under review.

The Constitution of New Jersey significantly recognizes and affirms the natural and unalienable rights of liberty, and the right to possess and protect property (R.S. Art. 1, par. 1, N.J.Const., N.J.S.A.). Among those prerogative rights of a property owner is that of using his property for his own advantage and enjoyment, and such a right is a liberty as well as a property right. People ex rel. Schimpff v. Norvell, 368 Ill. 325, 13 N.E.2d 960. Hence, a zoning regulation which limits or restricts an owner of property in his freedom of use deprives such owner, without compensation, to the extent of such restriction, of his liberty and also of a property right. Vassallo v. Orange, 125 N.J.L. 419, 15 A.2d 603.

The 'police power' is the succinct phrase used to express the soverign right of a state to promote, within constitutional limits, good order, safety, health, morals and the general welfare of society. Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; 16 C.J.S., Constitutional Law, § 174, page 537. The Constitution of New Jersey expressly includes, as a part of the police power of the State, the right of the legislature to enact laws under which municipalities may adopt zoning ordinances (art. IV, sec. VI, par. 2, N.J.Const.). In the case of 420 Broad Avenue Corporation v. Palisades Park, 137 N.J.L. 527, 61 A.2d 23, the court said that the authority of a municipality to limit or restrict the use of private property by zoning ordinances arises from the police power inherent in Government, the constitution, and the statutes passed pursuant thereto.

The Constitution of New Jersey also provides that private property shall not be taken for public use without just compensation (art. 1, par. 20, N.J.Const.).

It is the solemn duty of the court to guard and protect zealously the liberty of the people and their property rights, and it is, likewise, the duty of the court to prevent the taking of private property for public use without just compensation. But, it is also the duty of the court to uphold and enforce all reasonable laws properly relating to the police power for the promotion of good order, public safety, health, morals, and the general welfare. These duties often require the court to exercise great care in making a distinction between a violation of a constitutional or common law right, on the one hand, and an incidental injury to private property resulting from the proper exercise of the police power, on the other. These two fundamental principles frequently clash head-on, and each strives stubbornly for precedence. In the case of Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 297, 31 L.Ed. 205, the United States Supreme Court said that the legislature should determine, primarily, what measures are appropriate or needful for the protection of the public morals, public health or the public safety, and to promote the general welfare. But, Mr. Justice Harlan, speaking for the Court said: 'It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute, * * * the courts must obey the constitution rather than the law-making department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. * * * The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty-- indeed, are under a solemn duty--to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those...