Lionshead Lake, Inc. v. Township of Wayne

89 A.2d 693, 10 N.J. 165, 1952 N.J. LEXIS 234

• Court: Supreme Court of New Jersey
• Decided: June 26, 1952
• Status: Published

Opinions

The opinion of the court was delivered by

Vandebbilt, C. J.

The plaintiff, the owner and developer of a large tract of land in the defendant township, commenced this action in lieu of a prerogative writ challenging the validity of the defendant’s zoning ordinance in fixing the minimum size of dwellings and in placing certain of its properties in a residential district. On the plaintiff’s motion the trial court entered summary judgment in its favor on the first count, setting aside the provisions'of the ordinance fixing the minimum size of dwellings, Lionshead Lake, Inc., v. Wayne Tp., 8 N. J. Super. 468 (Law Div. 1950). On appeal this judgment was reversed by the Appellate Division of the Superior Court because of the existence of a factual question and the casé was remanded for trial, Lionshead Lake, Inc., v. Wayne Tp., 9 N. J. Super. 83 (App. Div. 1950).

The Township of Wayne is the most extensive municipality in Passaic County. It covers 25.34 square miles in comparison with the 23.57 square miles of Newark. It has a population of 11,815 in comparison with Newark’s 437,857. Only 12% of the total area of the township has been built up. Included within its borders are several sizable lakes (the one located within the plaintiff’s development, e. g., having an area of about 145 aeres) and as a result a considerable number of its residences have been built for summer occupancy only. Although a political entity it is in fact a composite of about a dozen widely scattered residential communities, varying from developments like the plaintiff’s where the average home costs less than $10,000, to more expensive sections where the homes cost from $35,000 to $75,000. It has but little business or industry.

On July 12, 1949, four years after the plaintiff had commenced the development of its Lionshead Lake properties and after over a hundred houses had been constructed there, the defendant adopted a revised zoning ordinance dividing the entire township into four districts; residence districts A and B, a business district and an industrial district, the last two comprising but a very small proportion of the township’s total area. In section 3 of the ordinance pertaining to residence A districts it was provided that:

“(d) Minimum Size of Dwellings:

Every dwelling hereafter erected or placed in a Residence A District shall have a living-floor space, as herein defined.

of not less than 768 square feet for a one story dwelling;

of not less than 1000 square feet for a two story dwelling having an attached garage;

of not less than 1200 square feet for a two story dwelling not having an attached garage.”

These minimum size requirements for dwellings were made applicable to residence B districts by section 4 (d) of the ordinance, to business districts by section 5 (c), and to industrial districts by section 6 (b) 1, the result being that the same minimum size requirements for dwellings prevail throughout the entire township.

Within the entire township only about 70% of all the existing dwellings meet the minimum requirements of the ordinance; in some sections of the township as few as 20% of the existing dwellings comply with the ordinance 'requirements, in others (among them the plaintiff’s Lionshead Lake development) only about 50% are above the prescribed minimum, while in other areas the percentage of compliance is far greater, reaching 100% in some of the more exclusive sections. The low percentage of compliance in certain areas is not particularly significant, however, for the reason that the township is as yet substantially undeveloped. Compliance with the requirements of the ordinance in the future will undoubtedly result in the nonconforming houses comprising but a small minority even in those areas where they are now in the majority. There was testimony to the effect that to build a house for year-round occupancy having the minimum 768 square feet of living space would cost from $10,000 to $13,000, if mass produced, and that only about 30% of the population were financially able to afford such homes. The plaintiff’s witness who so testified, a builder and developer, was hardly qualified, however, to express an opinion as to the financial ability of present and potential residents of the-township and his opinion as to construction costs was considerably out of line with that of the defendant’s expert who testified that homes complying with the ordinance could be and were being built at a cost of $8,500 to $9,300 if for year-round occupancy and $7,500 to $8,300 if for seasonal use only.

To meet the plaintiff’s attack on the reasonableness of the ordinance the defendant produced a recognized public health expert, who testified that the living-floor space in a dwelling had a direct relation to the mental and emotional health of its occupants, and that he had developed scientific standards for different size families: 400 square feet for one person 750 square feet for two persons, 1,000 square feet for three persons, 1,150 square feet for four persons, 1,400 square feet for five persons and 1,550 square feet for six persons. These the witness considered as desirable goals rather than legal standards. He conceded that the housing standards prescribed by the agencies of the Federal Government are below those written into the ordinance, as are those of the New Jersey Code of Minimum Construction Requirements for One and Two Family Dwellings, prepared by the Department of Economic Development, Division of Planning and Engineering (1946), which, however, does not have the force of law but is merely advisory.

After considering this and other evidence the trial court concluded that the minimum size requirements of the ordinance were not reasonably related to the public health, were arbitrary and unreasonable, and not within the police powers of the defendant. Accordingly judgment was entered on the first count of the complaint in favor of the plaintiff setting aside the minimum size of dwelling requirements with respect to the residence A and residence B districts in which the plaintiff’s property is located. The plaintiff failed to introduce any proof in support of the second count of its complaint in which it objected to the placing of its property in a residential zone. The court therefore granted the defendant’s motion for a dismissal thereof with prejudice, but subsequently declined to enter formal judgment to that effect. On the petition of the defendant we granted certification to review the judgment of the trial court with respect to the first count and its refusal to enter judgment with respect to the second count.

The zoning powers of municipalities have been extended by Art. IV, Sec. VI, par. 2 of the Constitution of 1947:

“The Legislature may enact general laws under which municipalities, other than counties, may adopt zoning ordinances limiting and restricting to specified districts and regulating therein, buildings and structures, according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, and the exercise of such authority shall be deemed to be within the police power of the State. Such laws shall be subject to repeal or alteration by the Legislature.”

The zoning statutes then in effect were amended by chapter 305 of the Laws of 1948 to give effect to the expansion of the zoning power contemplated by the addition of the italicized words to the corresponding provision of the 1844 Constitution (Art. IV, Sec. VI, par. 5). Moreover, by Art. IV, Sec. VII, par 11 of the Constitution of 1947, which had no counterpart in the 1844 Constitution, we are required to construe the constitutional and statutory provisions pertaining to zoning liberally in favor of a municipality:

“The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.”

When the enabling zoning statutes, R. S. 40:55-30 and 31, both as amended by chapter 305 of the Laws of 1948, supra, and R. S. 40:55-32, are read in the light of the constitutional mandate to construe them liberally, there can be no doubt that a municipality has the power by a suitable zoning ordinance to impose minimum living-floor space requirements for dwellings. N. J. S. A. 40:55-30 provides:

“Any municipality may by ordinance, limit and restrict to specified districts and may regulate therein, buildings and structures accord1 ing to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, and the exercise of such authority, subject to the provisions of this article, shall be deemed to be within the police power of the State. * * *

The authority conferred by this article shall include the right to regulate and restrict the height, number of stories, and sizes of buildings, and other structures, the percentage of lot that may be occupied, the sizes of yards, courts, and other open spaces, the density of population, and the location and use and extent of use of buildings and structures and land for trade, industry, residence, or other purposes.”

N. J. S. A. 40:55-31 provides:

“For any or all or said purposes- the governing body or board of public works may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this article, and it may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings or other structures, and the nature and extent of the uses of land, within' such districts. * * ®”

The purposes of zoning are set forth in R. S. 40 :55-32 as follows:

“Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes; to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.”

Thus not only has the Constitution conferred on the Legislature very broad powers to pass enabling acts with respect to zoning but the Legislature in a like effort to make effective its constitutional power in this respect has given the municipalities similar broad powers expressed in considerably greater detail than in the Constitution. To the traditional presumption with respect to the validity of every legislative act there has been added, moreover, the constitutional mandate to construe such legislation liberally in favor of the municipalities. These constitutional and statutory changes have in effect adopted the reasoning of the dissenting opinion in Brookdale Homes, Inc., v. Johnson, 126 N. J. L. 516 (E. & A. 1941) and rendered inapplicable the decision of the majority of the Court of Errors and Appears holding invalid an ordinance imposing minimum restrictions on the size of dwellings to protect the character of a community and property values therein, Id., 123 N. J. L. 603 (Sup. Ct. 1940), affirmed o. b. 126 N. J. L. 516 (E. & A. 1941). We are bound b]' these changes in our organic law and accordingly this court in Schmidt v. Board of Adjustment of the City of Newark, 9 N. J. 405 (1952), has held that so long as the zoning ordinance was reasonabfy designed, by whatever means, to further the advancement of a community as a social, economic and political unit, it is in the general welfare and therefore a proper exercise- of the zoning power. The underlying question before us is whether in the light of these constitutional and legislative provisions the zoning ordinance of the defendant township is arbitrary and unreasonable. That question, moreover, must be answered in the light of the facts of this particular ease. We must bear in mind, finally, that a zoning ordinance is not like the law of the Medes and Persians; variances may be permitted, the zoning ordinance may be amended, and if the ordinance proves unreasonable in operation it may be set aside at any time.

In Duffcon Concrete Products, Inc., v. Borough of Cresskill, 1 N. J. 509, 513 (1949) we said:

“What may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously.”

The Township of Wayne is still for the most part a sparsely settled countryside with great natural attractions in its lakes, hills and streams, but obviously it lies in the path of the next onward wave of suburban development. Whether that development shall be “with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality” and whether it will “prevent the overcrowding of land or buildings” and “avoid undue concentration of population” depends in large measure on the wisdom of the governing body of the municipality as expressed in its zoning ordinance. It requires as much official watchfulness to anticipate and prevent suburban blight as it does to eradicate city slums.

Has a municipality the right to impose minimum floor area requirements in the exercise of its zoning powers? Much of the proof adduced by the defendant township was devoted to showing that the mental and emotional health of its inhabitants depended on the proper size of their homes. We may take notice without formal proof that there are minimums in housing below which one may not go without risk of impairing the health of those who dwell therein. One does not need extensive experience in matrimonial causes to become aware of the adverse effect of overcrowding on the well-being of our most important institution, the home. Moreover, people who move into the country rightly expect more land, more living room, indoors and out, and more freedom in their scale of living than is generally possible in the city. City standards of housing are not adaptable to suburban areas and especially to the upbringing of children. But quite apart from these considerations of public health which cannot be overlooked, minimum floor-area standards are justified on the ground that they promote the general welfare of the community and, as we have seen in Schmidt v. Board of Adjustment of the City of Newark, 9 N. J. 405 (1952), supra, the courts, in conformance with the constitutional provisions and the statutes hereinbefore cited take a broad view of what constitutes general welfare. The size of the dwellings in any community inevitably affects'the character of the community and does much to determine whether or not it is a desirable place in which to live. It is the prevailing view in municipalities throughout the State that such minimum floor-area standards are necessary to protect the character of the community. A survey made by the Department of Conservation and Economic Development in 1951 disclosed that 64 municipalities out of the 138 reporting had minimum dwelling requirements. In the light of the Constitution and of the enabling statutes, the right of a municipality to impose minimum floor-area requirements is beyond controversy.

With respect to every zoning ordinance, however, the question remains as to whether or not in the particular facts of the case and in the light of all of the surrounding circumstances the minimum floor-area requirements are reasonable. Can a minimum of living floor space of 768 square feet for a one-story building; of 1,000 square feet for a two-story dwelling having an attached garage; and of 1,200 square feet for a two-story dwelling not having an attached garage be deemed unreasonable in a rural area just beginning to change to a suburban community? It is significant that the plaintiff admits that of the 100 houses in its development 30 met the minimum requirements when constructed and 20 more by voluntary additions of the owners to meet their individual needs have been enlarged to conform to the minimum requirements of the ordinance, and while this litigation has been pending 20 others have been constructed conforming to the ordinance. If some such requirements were not imposed there would be grave danger in certain parts of the township, particularly around the lakes which attract summer visitors, of the erection of shanties which would deteriorate land values generally to the great detriment of the increasing number of people who live in Wayne Township the year round. The minimum floor area requirements imposed by the ordinance are not large for a family of normal size. Without some such restrictions there is always the danger that after some homes have been erected giving a character to a neighborhood others might follow which would fail to live up to the standards thus voluntarily set. This has been the experience in many communities and it is against this that the township lias sought to safeguard itself within limits which seem to us to be altogether reasonable.

Two minor points raised on this appeal remain to be determined. The defendant contends that the plaintiff’s action is premature in that no application to the building inspector of the township was made and denied prior to making this attack on the ordinance. The point is without merit under Fischer v. Township of Bedminster; 5 N. J. 534 (1950).

Finally, the defendant contends that the trial' court erred in failing to enter judgment dismissing with prejudice the second count of the plaintiff’s complaint, despite the fact that the defendant’s motion to that effect was granted because of the plaintiff’s failure to adduce any proof in support thereof. We fail to understand the trial court’s reluctance on this point and are of the opinion that the defendant is entitled to have its judgment of dismissal with prejudice duly signed and entered.

The judgment on the first count of the plaintiff’s complaint is reversed. Judgment shall be entered with prejudice in favor of the defendant on the second count of the complaint.