Stokes v. Jenkins

• Citation: 152 A. 383
• Parties: STOKES et ux. v. JENKINS et al.
• Decision Date: 10 December 1930
• Court: New Jersey Court of Chancery

152 A. 383

STOKES et ux.

v. JENKINS et al.

Court of Chancery of New Jersey.

Dec. 10, 1930.

Syllabus by the Court.

A court of equity has jurisdiction to grant injunctive relief against a violation of a municipal zoning ordinance, on the complaint of an individual who shows he has sustained, or is likely to sustain, special damage as a result of such violation.

Suit by Bordeaux W. Stokes and wife against Edward Jenkins and others. Decree for complainants.

Louise Ruth Shapiro, of Newark, for complainants.

King & Vogt, of Morristown (C. Stanley Smith, of Morristown), for defendants.

FIELDER, Vice Chancellor.

The defendant Cooper purchased a vacant lot in the town of Dover and placed thereon a dwelling house which he moved from a nearby lot under a permit issued by the building inspector of the town. The complainants are the owners of a lot, with the double or two-family dwelling thereon, which adjoins the defendant's lot, and the complainants reside in that side of their house which overlooks the defendant's lot, the other side being occupied by their tenant. In the side occupied by the complainants, there are three cellar windows and eight windows in the rooms above the cellar, all of which face the defendant's property. When the defendant purchased his lot and placed a house thereon, that lot and complainants' lot were within a zone which, by ordinance of the town of Dover, is restricted to dwelling houses and which ordinance provides for a minimum width of five feet for the side yard of each dwelling and for an additional side yard width of two inches for each foot that a building exceeds a height of fifteen feet, if the lot is fifty feet or less wide. The defendant's lot is forty-five feet wide, and his dwelling is thirty feet in height, so that the ordinance requires a side yard of seven feet and six inches between the defendant's house and the dividing line between his lot and the complainants' lot. The actual distance between the defendant's foundation and said dividing line is six feet, into which side yard space an octagon, or bay window, projects three feet and six inches, so that it is not denied that the defendant's house stands in violation of the ordinance side yard requirement. The complainants seek an injunction against the defendant's maintenance of said house in its present position and commanding its removal to such distance from their lot line as will meet the side yard provisions of said ordinance.

The first question presented Is: Has this court jurisdiction to grant injunctive relief against a violation of a municipal zoning ordinance on the complaint of an individual, in case special damage is shown to have been sustained by the complainant as a result of such violation?

The statute which authorized the adoption of the ordinance in question is chapter 274 of the laws of 1928 (P. L. p. 696). It followed the approval by the voters, of a "zoning amendment" to the state Constitution (P. L. 1928, p. 820). The statute, after authorizing the adoption of a zoning ordinance, provides (section 10) that the ordinance may provide for its enforcement, and that, in case of any violation, the municipal authorities, in addition to other remedies, may institute any appropriate action to prevent, or abate, such unlawful maintenance. The ordinance adopted by the town of Dover provides a penalty of fine, or imprisonment, or both, for any violation. No steps have been taken by the municipal authorities to abate the violation here in question, or to impose a penalty therefor.

In Fielders v. North Jersey St. R. Co., 68 N. J. Law, 343, 53 A, 404, 54 A. 822, 59 L. R. A. 455, 96 Am. St. Rep. 552, it was said that there is no distinction between a valid statute and a valid ordinance in respect to the binding force of a duty created thereby; that a lawful municipal ordinance is an exercise of the delegated power of legislation, and that when adopted, in the exercise of that power, ordinances frequently prescribe for persons subject thereto a rule of conduct for the purpose of insuring the safety of others. In Evers v. Davis, 86 N. J. Law, 196, 90 A. 677, 679, the court quoted with approval the following: "The Legislature must be assumed to know the law, and if upon common-law principles such a statute would affect private rights, it must have been passed in anticipation of that result. The Legislature is to be credited with meaning just what it said-that the conduct forbidden is an offense against the public, and that the offender shall suffer certain specified penalties for his offense. Whether his offense shall have any other legal consequence has not been passed on one way or the other as a question of legislative intent, but is left to be determined by the rules of law. If the effect of such a statute is to change the relations of individuals to one another, this must come about, not through the intent of those who enacted the statute, but by the operation of common-law principles."

In Weller v. McCormick, 52 N. J. Law, 470, 19 A. 1101, 1102, 8 L. R. A. 798, the court said: "It is a general principle that where there rests upon any person a public duty either arising at common law or created by statute, and that duty is due to the public, considered as composed of individuals, and for their protection, each person specially injured by a breach of the obligation is entitled to a private action to recover compensation for his damage."

In Gilbough v. West Side Amusement Co., 64 N. J. Eq. 27, 53 A. 289, 292, it was said: "Whenever a private right is invaded, and this court is called upon to protect it, and a proper case is made out, this court is bound to give the remedy, without regard to the criminal or quasi criminal character of the act complained of. In fact, the public remedy by punishment for the commission of a criminal act is not a remedy upon which the private citizen can with safety rely, or one upon which he is bound to rely."

In Gaston v. Ackerman, 142 A. 546, 6 N. J. Misc. R. 696, upon certiorari to review the action of a board of appeals with reference to granting a permit to erect an apartment house in a district zoned for a one housekeeping unit, objection was made that the prosecutor had no personal or property interest so as to entitle him to prosecute the writ. The court said: "The prosecutor owns a tract of land upon which there is a one-family dwelling upon the same street and in the same residence zone as the tract on which it is proposed by Louis Stein to erect the apartment house. * * * We think that the prosecutor has such a property interest as entitles him to raise the question as to the right of the board of appeals, or board of adjustment, to grant to Stein the building permit."

The Zoning Act recognizes personal or property rights in property owners and provides for their protection, as, under section 8 of the act, no change can be made in a zoning ordinance without giving protesting property owners a hearing; that an appeal may be taken to a board of adjustment by any property owner aggrieved by a decision of a municipal administrative officer, and that notice of hearing on the appeal shall be given property owners who may be affected thereby.

In other jurisdictions it has been held that, if one who owns property in a district designated as residential suffers special injury through the...