Napierkowski v. Gloucester Tp.
| Decision Date | 20 April 1959 |
| Docket Number | No. A--84,A--84 |
| Citation | 150 A.2d 481,29 N.J. 481 |
| Parties | Laura NAPIERKOWSKI, Plaintiff-Respondent, v. TOWNSHIP OF GLOUCESTER, Defendant-Appellant. |
| Court | New Jersey Supreme Court |
Meyer L. Sakin, Camden, argued the cause for defendant-appellant.
Milford Salny, Netcong, argued the cause for plaintiff-respondent.
The opinion of the court was delivered by
This is a proceeding in lieu of prerogative writ attacking certain ordinances of the Township of Gloucester, County of Camden, at least insofar as those ordinances are designed to prohibit plaintiff from maintaining and utilizing a trailer-home on her lot, located in the township.
The Superior Court, Law Division, after hearings, entered a judgment in favor of the plaintiff, and the township prosecuted an appeal to the Superior Court, Appellate Division. While the cause was pending there, and prior to argument, we certified it on our own motion.
Plaintiff's lot is approximately four acres in size and was purchased by her in 1946. Her residence at the time of commencement of the instant proceedings was in Philadelphia, Pennsylvania.
In March 1957 plaintiff purchased a house trailer or mobile home, intending to place it on her lot for use as a permanent residence by herself and her husband. Several days after purchasing the trailer plaintiff orally inquired of the township clerk whether she might place a trailer on her lot and was informed that she could not. The township had in 1947 enacted an ordinance entitled 'An Ordinance defining trailers or camp cars and prohibiting the parking and placing of the same within the limits of the Township of Gloucester, in the County of Camden and State of New Jersey.' The unmistakable import of the 1947 trailer ordinance was to prohibit the use of trailers for residential purposes within the township.
Plaintiff thereupon informed the vendor of the trailer of the fact that she was unable to locate the trailer in the township. By letter dated April 29, 1957 the trailer vendor's attorney wrote to the township's solicitor advising that in his opinion the 1947 trailer ordinance was inapplicable to plaintiff since section 1 of that ordinance defined a trailer 'to be a vehicle * * * designed to permit the occupancy thereof as a dwelling or sleeping place for one or more persons and having no foundation other than wheels, jacks or skirtings so arranged as to be integral with or portable by said trailer or camp car,' whereas plaintiff proposed to place her trailer on a concrete foundation. The township committee, at its May 6, 1957 meeting, was informed of counsel's contention but rejected it, since it was the committee's belief that the ordinance prohibited any use of a trailer as living quarters.
Thereafter plaintiff was represented by her present attorney. There followed a course of negotiations between plaintiff's attorney and the township which failed to reach any accord. On July 15, 1957 plaintiff commenced the instant in lieu proceeding. The complaint alleged that the 1947 trailer ordinance was unconstitutional. The township, in its answer, further alleged that plaintiff's proposed location of the trailer would violate the township's zoning ordinance.
The township zoning ordinance was passed on first reading on May 20, 1957, was amended and passed on second reading on June 17, 1957 and was adopted on July 1, 1957. Under its terms plaintiff's land is located in an 'A' Residence District. Section 500 provides:
'500. In all 'A' Residence Districts the following uses (and no others) of lands and buildings are permitted.
'(2) One family detached dwelling. * * *' Section 502, relating to bulk restrictions in 'A' Residence Districts, provides in part:
'(2) No building shall have usable first floor area of less than 800 square feet, except in the case of the type of building known as 'split level'. * * *'
Plaintiff's trailer has a floor area of 500 square feet.
The zoning ordinance further permits dwellings to be located in the industrial zone provided that such dwellings conform to the limitations of 'A' Residence Districts and provided further that prior approval of the board of adjustment is obtained.
On September 3, 1957 the township adopted a second trailer ordinance. This ordinance expressly repealed all inconsistent provisions of the prior ordinance. The 1957 trailer ordinance is entitled: 'An ordinance to regulate and control trailer, trailer coaches, camp cars and trailer camps in the Township of Gloucester.' Trailer is defined as:
'any unit used for living, sleeping, or business purposes, by one or more persons, which is equipped with wheels or similar devices used for the purpose of transporting said unit from place to place, whether it be self-propelled or otherwise.'
Trailer camp is defined as:
'any place, area, lot, or tract of land upon which is located any Trailer * * *.'
Section 3 of the ordinance then provides:
'No person * * * owning * * * any trailer shall locate, park, keep, or maintain said trailer upon any lot or tract of land within the Township of Gloucester, except upon a trailer camp conducted, maintained, and licensed in full and complete compliance with all the provisions of this Ordinance.'
There follows a comprehensive scheme for the regulation of trailer camps within the township, including provisions for adequate drainage, light and air, traffic congestion, water supply, sewerage facilities, lavatory facilities, collection of garbage and waste materials and sufficient lighting of common facilities.
It is further provided that:
'Every trailer camp shall be established and located in compliance with any Zoning Ordinance which is or shall become in force in the Township of Gloucester, and/or any revision or amendment thereof.'
The 1957 trailer ordinance further makes provision for the licensing of trailer camps and for the procedure to obtain a license. The ordinance requires an annual license fee of $200 per year and an additional fee of $1 per calendar week or part thereof for each trailer. And each licensee is further required to maintain a camp register setting forth 'the license number of the trailer, the serial, type and license number of each automobile, the date of arrival, whether still at the camp and if not the date of departure, and the age, name and last permanent address of the owner of each trailer and automobile and of each occupant thereof,' copies of which are to be sent each week to the township clerk, the chief of the police department and the township tax collector.
Plaintiff was granted leave to file a supplemental complaint challenging the validity of the 1957 trailer ordinance as applied to her. The township's answer to the supplemental complaint charged that plaintiff's proposed use of her property was in violation of the trailer ordinances of 1947 and 1957 and the zoning ordinance and further, for the first time, alleged violation of the township's building code enacted in 1946, and last amended in 1956. The township building code requires the procurement of a building permit for all construction in excess of $50 and further sets forth specifications concerning dimensions and materials which plaintiff's trailer does not and cannot meet.
The building code ordinance does not specifically refer to 'trailers' but rather to 'buildings' or 'dwellings.'
It appears that plaintiff never formally applied for either a building permit or a variance prior to commencing suit.
The trial court, after viewing the premises, found that the immediate locale of plaintiff's property was mainly rural in characteristic. The court concluded that the area was not, in its present stage of development a residential area, nor would it be so within the reasonably foreseeable future and that therefore the township could not prohibit plaintiff from placing the trailer on her lot. More particularly the court adjudged: (1) that the 1947 trailer ordinance is unconstitutional, null and void in its entirety; (2) that the 1957 trailer ordinance is unconstitutional, null and void insofar as it purports to regulate or prohibit plaintiff's use of a trailer on her lands; (3) that the building code ordinance has no application to regulate or prohibit plaintiff's use of a trailer on her lot and (4) that the zoning ordinance, to the extent that it purports to regulate or prohibit plaintiff's use of a trailer on her lands for dwelling purposes, is unconstitutional and invalid.
Initially, we deal with two procedural questions raised by the township. The township maintains that the suit is out of time since it was not commenced within 45 days of the accrual of the right to review under R.R. 4:88--15. It is asserted that the time period herein was triggered on May 6, 1957 when the township solicitor advised the trailer vendor's attorney that the township committee had denied plaintiff's right to maintain a trailer on her property. (Suit was instituted on July 17, 1957.) However, the letter of denial was followed by a course of further negotiation between plaintiff's present attorney and the township solicitor lasting until at least June 13, 1957. Moreover, plaintiff has challenged the constitutionality of the various township ordinances. Under the principles recently enunciated by this court in Schack v. Trimble, 28 N.J. 40, 45--51, 145 A.2d 1 (1958), we conclude that the interests of justice require that plaintiff be afforded a right to judicial review.
Secondly, the township maintains that since plaintiff is attacking the zoning ordinance as being arbitrary and unreasonable in its application to plaintiff's proposed use of her property, and is not attacking the ordinance in its entirety, she is precluded from making a direct attack upon the ordinances. Our decisions have generally recognized that the prudent procedural course is ordinarily to require the owner of property to first exhaust his remedy of a variance before the local authorities. ...
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...has been sanctioned by our previous cases (E.g., Vickers v. Gloucester Tp., supra, 37 N.J. 232, 181 A.2d 129; Napierkowski v. Gloucester Tp., supra, 29 N.J. at 481, 150 A.2d 481) 14--that mobile homes have a potentially undesirable impact on the community. However, by creating an exception ......
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... ... At present there are no trailer camps in the township ... In April 1959 this court decided Napierkowski v. Township of Gloucester, 29 N.J. 481, 150 A.2d 481, which concerned the validity of the zoning ordinance as it applied to trailers in residential districts. We held 'the provisions of the zoning ordinance prohibiting the location of trailers in residence districts * * * bears a reasonable ... ...
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