BRUCE S. BERGER AND FREDERICKA NOLDE BERGER, HIS WIFE, ROBERT B. LEWIS AND MARGARET MCE. LEWIS, HIS WIFE, JOHN MCMULLEN AND JACQUELINE MCMULLEN, HIS WIFE, AND FREDERIC GUSMER AND PATRICIA GUSMER, HIS WIFE, PLAINTIFFS-APPEL- LANTS, v. THE STATE OF NEW JERSEY, MAURICE G. KOTT, ACTING COMMISSIONER OF THE DEPARTMENT OF INSTITUTIONS AND AGENCIES OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS, AND WIL- LIAM GRAESSLE AND FLORENCE A. GRAESSLE, HIS WIFE, AND THE BOROUGH OF MANTOLOKING, A MU- NICIPAL CORPORATION OF THE STATE OF NEW JER- SEY, DEFENDANTS.
Supreme Court of New Jersey
September 21, 1976
71 N.J. 206
Argued January 26, 1976
Mr. Thomas J. Gunning argued the cause for appellants Gusmer (Messrs. Sim, Sinn, Gunning, Serpentelli and Fitz- simmons, attorneys; Mr. Gunning on the brief).
Mr. Michael S. Bokar, Deputy Attorney General, argued the cause for respondents (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. Bokar on the brief).
The opinion of the court was delivered by
MOUNTAIN, J. This case presents the question of whether a group home for multi-handicapped, pre-school children must cease its operation either because of restrictive cove- nants in deeds of record or because of zoning provisions limiting the areа to single family dwellings.
By deed dated July 9, 1973 William and Florence A. Graessle conveyed their premises in the Borough of Man-
Pursuant to these conditions, the State formulated plans to utilize the property. The State intended that 8 to 12 multi-handicapped, pre-school children, most of whom would be wards of the State, would reside in the home with a mar- ried couple having 22 years of experience as foster parents. This arrangement would enable the children, who would otherwise be confined to hospitals, to grow and develop in a family environment. Supportive services would be pro- vided by an educational specialist, two paraprofessionals, a cook-housekeeper and a maintenance man, none of whom would reside on the premises.
The children would neither attend local public schools nor participate in local community progrаms such as the Little League. Rather, most of their activities including school instruction, as well as play, training and physical therapy sessions, would take place at Graewill House. Their length of stay in the home, to be determined by individual progress, was anticipated to average between 12 and 18 months. Ultimately, it was hoped that the children, having learned adequately to cope with their individual handicaps, would be able either to return to their own homes or be placed in adoptive or foster homes.
In formulating these plans, the State also engaged in negotiations with the Mayor and Borough Attorney of Man- toloking and conducted a public meeting attended by con- cerned residents of the municipality. Ultimately, in the fall of 1973, the State agreed to exeсute a binding agreement
Four couples owning property either adjacent or in close proximity to the Graessle premises instituted this action on October 30, 1973 to restrain the use of the facility proposed by the State. Named as defendants were the State of New Jersey, Maurice G. Kott, Acting Commissioner of the De- partment of Institutions and Agencies, William and Florence A. Graessle, and the Borough of Mantoloking. Plaintiffs predicated their challenge on two bases: first, that the in- tended use of the Graessle premises would constitute a clear violation of the negative reciprocal covenants contained in deeds of record establishing a neighborhood scheme of single family residences, and second, that the proposed use would contravene Mantoloking‘s zoning ordinance restricting the area to single family dwellings.
Plaintiffs’ application for a preliminary injunction was denied on November 29, 1973. At approximаtely the same time, the State officially began using Graewill House to care for handicapped children in the manner set forth above, a use which presently continues. Cross motions for summary judgment were made by the parties, culminating in a de- cision rendered July 26, 1974 denying plaintiffs’ motion and granting summary judgment to defendants. The trial court‘s decision was based upon findings that the restrictive cove- nants regulated only the type of structure, not the occupancy or use of the premises, and that in any event the house was being used as a dwelling. It was also held that the zoning ordinance was invalid and that the State enjoyed immunity
Plaintiffs’ first contention is that the use of the Graessle premisеs as a group home violates restrictive covenants in deeds of record establishing a neighborhood scheme of single family residences. Title to the premises of the plaintiffs and the Graessles, as well as title to much other adjoining land, derives from a common grantor, Bayhead-Mantoloking Land Co. (Bayhead). About the year 1925, Bayhead plotted a large tract of land into numerous lots and filed a map of the tract as plotted. In conveying the lots, Bayhead in- cluded restrictions in each deed limiting the permissible structures on the premises to dwelling houses with private garages and prohibiting manufacturing or any dangerous, noxious or offensive use.1 Plaintiffs allege Graewill House fails to conform to these restrictions.
Bruno v. Hanna, 63 N. J. Super. 282 (App. Div. 1960) is in point. There the covenants read as follows:
That no more than one residence or dwelling house shall be erected on any lot hereby conveyed. . . .
That the premises hereby conveyed shall be used for dwelling pur- poses only. . . .
These are essentially the same covenants we consider here. In Bruno, plaintiffs proposed to construct duplex dwellings for two or more families. In finding that such use would not violate the covenants, Judge (now Justice) Sullivan pointed out that
The covenants under consideration, insofar as use is concerned, provide nothing more than that the premises ‘shall be used for dwelling purposes only.’ There is no attempt to restrict the use to single family occupancy. The other covenant specifies ‘That no more than one residence or dwelling house shall be erected on any lot.’ The word ‘one’ obviously refers to the number of buildings, and the words ‘residence or dwelling house’ indicate the permissible type of structure.
It will be observed that the court looked to the literal lan- guage of the covenants and refused to indulge in specula-
Restrictions on the use to which land may be put are not favored in law because they impair alienability. They are always to be strictly construed, and courts will not aid one person to restrict an- other in the use of his land unless the right to restrict is made mani- fest and clear in the restrictive covenant. [Id.]
While in some instances the protections such cove- nants afford probably increase the value of proрerty and may enhance marketability, they do nonetheless raise title problems and impair alienability. We adhere to the view that they must be strictly construed. Such covenants have, or may have, a very important effect upon land use. The limitations and prohibitions they impose may be felt over a very long period of time. It is not too much to insist that they be carefully drafted to state exactly what is intended — no more and no less.
The authorities in this State supporting the holding in Bruno v. Hanna, supra, include Fortesque v. Carroll, 76 N. J. Eq. 583 (E. & A. 1910); Underwood v. Herman & Co., 82 N. J. Eq. 353 (E. & A. 1913); Crane v. Hathaway, 4 N J. Misc. 293 (Ch. 1926). The rule is sustained by the clear weight of authority elsewhere. Annotation, “Multiple Resi- dence as Violation of Restrictive Covenant,” 14 A. L. R. 2d 1376, 1382 (1950).
It is also urged that the language utilized in the restrictive covenants here in issue manifests an intent to limit permissible structures to those used for private resi- dential living. Accepting this contention arguendo, we dо not agree that the present use of Graewill House violates the covenants. On the contrary, we look upon the present use as being that of a private residence for a limited number
Plaintiffs further assert that the covenants in question re- quire not only residential living but also occupancy by a single family. As we have seen above, there is nothing in the express language of the covenants to support this con- tention. In furtherance of this proposition, however, they rely on statements of Mr. Otis C. Strickland, the Secre- tary Treasurer of the common grantor, Bayhead-Mantolo- king Land Co., who prepared most of the deeds from Bay- head during 1925 and 1926. According to Mr. Strickland, the purpose of thе covenants was “to create and impose a neighborhood scheme of single family residential living” in order “to preserve the family residential nature of the area.” Moreover, he stated that the term dwelling house “was in- tended to establish the private residential scheme in accord- ance with the meaning and use of said term in 1925” and that “places of accommodation, such as boarding houses” were intended to be excluded.
Again conceding, for the sake of argument only, that single families may have been envisioned by the common grantor, we are unable to perceive in the avowed intent of Bayhead any design to restrict the use of the affected prem- ises to single families comprised exclusively of related mem- bers. There is simрly nothing to suggest that the relation-
In light of the above, we find that the use of the Graessle premises as Graewill House does not violate the restrictive covenants of record nor does it contravene the neighborhood scheme. To the contrary, the use of the premises as a group home for handicapped children is clearly within the use con- templated by the term “dwelling house” and in conformity with, rather than in derogation of, the purported neighbor- hood scheme of residential living.
The other basis for plaintiffs’ attack is that the use of the Graessle premises as a group-care home violates the zoning ordinance of the Borough of Mantoloking, which pro- vides for only two zones within the municipality, a business zone and a residential zone. The latter zone, which encom- passes 95% of the land of the Borough and includes the Graessle tract, is restricted to “single family dwellings,” de- fined as “detached building[s] designed for, or occupied ex- clusively by, one family in one dwelling unit.” “Family” is defined as
one person living alone or two or more persons related by blood, mar- riage or adoption and living together as a single unit in one house
or within one curtilage and under one head (pater or mater familias); domestic servants, one companion, one housekeeper and occasional non-paying guests may be included but no other person.
It is readily apparent that the residents of Graewill House do not constitute a family as defined by the above quoted section of the ordinance. We are, however, for rea- sons discussed below, unable to accept plaintiffs’ argument that the operation of Graewill House should therefore be enjoined.
Initially, it should be noted that state agencies are generally immune from the zoning ordinance provisions of a municipality. Rutgers v. Piluso, 60 N. J. 142, 153 (1972). See generally 2 Anderson, American Law of Zoning § 9.06 (1968); Note, Governmental Immunity from Local Zoning Ordinances, 84 Harv. L. Rev. 869 (1971). While there are no precise criteria by which to determine the existence or scope of such immunity, we have recog- nized that the test is basically one of legislative intent — i. e., whether the Legislature intended the particular govern- mental unit to be immune with respect to the particular en- terprise. As we indicated in Rutgers v. Piluso, supra, legis- lative intent is to be gleaned from a number of factors, including “the nature and scope of the instrumentality seeking immunity, the kind of function or land use in- volved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests.” 60 N. J. at 153. Consideration of these factors in the instant case compels the conclusion that the State is immune from the Mantoloking zoning ordinance.
The Department of Institutions and Agencies, a prin- cipal department in the executive branch of the State govern- ment, is entrusted with the responsibility of providing care for children whose needs cannot be adequately met in their own homes. See
Additional considerations buttress our conclusion that the State is immune in the instant case. The use of the Graessle premises as a residence for a group functioning as a family entity substantially effectuates the purposes of the zoning provision sought to be enforced. Moreover, it furthers the public interest of providing quality care for handicapped children. Finally, the impact of Graewill House on legiti- mate local interests is slight when compared with the bene- ficial goals sought to be accomplished. Indeed, it is con- sonant with, not destructive of, the residential nature of the community. All of these factors unite to convince us that the Mantoloking zoning provisions cannot frustrate the State‘s operation of Graewill.
It is fundamental, however, that any assertion of immunity must be reasonable so аs not “to arbitrarily over- ride all important legitimate local interests.” Rutgers v. Piluso, supra, 60 N. J. at 153; Township of Washington v. Village of Ridgewood, 26 N. J. 578, 584-86 (1958). Plain- tiffs assert that the failure of the State to consider the objections of the community prior to establishing Graewill illustrates its unreasonableness. To support their position they rely on Long Branch Division of United Civic & Taxpayers Org. v. Cowan, 119 N. J. Super. 306 (App. Div.), certif. den. 62 N. J. 86 (1972), wherein the Appellate Di- vision held that the State Department of Health was im- mune from local zoning provisions thus permitting the es-
We are not persuaded that the instant case merits the same disposition. We see nothing to suggest that the State acted arbitrarily in deciding to utilize the Graessle premises as a residential home for handicapped children, a use which is markedly different from a drug treatment center. The State negotiated with officials of Mantoloking to assure that Graewill House would continue to be compatible in ap- pearance with the neighborhood and met with concerned residents of the town. The fact that many of the residents voiced opposition to Graewill House does not, in and of it- self, mean that the State acted unreasonably in proceeding with its plans. Rather, the reasоnableness of its action must be evaluated in terms of the effect Graewill has on the sur- rounding area. We find nothing to convince us that Grae- will has such a detrimental effect as to warrant judicial in- terference, and have no difficulty in concluding that the State, acting reasonably, is immune from the Mantoloking zoning provisions restricting single family dwellings to persons related by blood, marriage or adoption.
That Graewill has been established as a group home gives rise to an equally compelling reason for our finding the zoning restriction to be without effect. Mu- nicipalities must look to legislation to determine the scope of their zoning powers. These are as comprehensive or as restrictive as the relevant statutes determine. The New Jersey Legislature has expressly prohibited municipalities from discriminating in their zoning ordinances governing single family dwellings between children residing therein by virtue of their relationship by blood, marriage or adop-
Plaintiffs also contend that neither
The above statutory ground demonstrably disposes of plaintiffs zoning argument. However, because the matrix of
There is no doubt that it is within the competency of a municipality to use its zoning power in order to establish residential areas. See Collins v. Board of Adjustment of Margate City, 3 N. J. 200, 208 (1949), wherеin zoning for single family dwellings was upheld as a valid exercise of police power. The United States Supreme Court recently recognized in Village of Belle Terre v. Boraas, 416 U. S. 1, 94 S. Ct. 1536, 1540, 39 L. Ed. 2d 797 (1974) the legitimacy of zoning to preserve a family style of living:
A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one . . . . The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.
We are in total and complete accord with this reasoning that supports the right of a municipаl governing body to en- deavor in every legitimate way to secure and maintain “the blessings of quiet seclusion” and to make available to its inhabitants the refreshment of repose and the tranquillity of solitude.
Nevertheless, while municipalities are free to zone in such a way as will best attain these values, and to prohibit from such areas any use which threatens to erode such values or destroy the residential character of the area, all restrictions must, at the same time, satisfy the demands of due process. Substantive due process requires that zoning regulations be reasonably exercised; they may be neither un- reasonable, arbitrary nor capricious. The means chosen must have a real and substantial relation to the end sought to be achieved. Moreover, the regulation must be reasonably
When the Mantoloking ordinance defining “family” as those persons related by blood, marriage or adoption is measured against the demands of due process, it is clear that the regulation must fall. It so narrowly delimits the per- sons who may occupy a single family dwelling as to pro- hibit numerous potential occupants who pose no threat to the style of family living sought to be preserved. As such, we cannot conclude that the definition of “family” is reason- able.
New Jersey courts have consistently invalidated zoning ordinanсes that were unreasonably restrictive in delineating permissible occupants. For example, in Kirsch Holding Co. v. Borough of Manasquan, supra, we struck down regulations which restrictively defined “family” and prohibited group rentals in two seashore communities. Finding that the or- dinances precluded many harmless uses in the attempt to avoid rentals to unruly unrelated groups, we concluded, in reasoning that we reaffirm today, that they were sweepingly excessive and thus legally unreasonable.
Similarly, in Gabe Collins Realty, Inc. v. City of Margate City, 112 N. J. Super. 341 (App. Div. 1970) the court in- validated an ordinance defining family as one or more per- sons related by blood, marriage or adoption or not more than two unrelated persons. Like the ordinances in Kirsch, the municipal enactment was designed to eliminate unde- sirable group rentals. Judge Conford, writing for the Appellate Division, noted thе legitimate municipal desire to control the problems generated by some unrelated groups, but concluded that a municipality may not validly resort to sweepingly excessive restrictions on property rights to eradicate the source of the problem. Such zoning deprives
While we have not hesitated to strike down zoning ordi- nances that fail to satisfy the demands of substantive due proc- ess, we are not unmindful of the problem confronting many municipalities which desire to maintain a prevailing family environment. Their need is to enact ordinances that will both withstand judicial scrutiny, and at the same time ex- clude uses that may impair the environment. We believe a satisfactory resolution of this prоblem would result, were local governments to restrict single family dwellings to a reasonable number of persons who constitute a bona fide single housekeeping unit. If such a requirement were in- corporated into zoning ordinances, it would not only per- petuate the stability, permanence and other beneficial at- tributes long associated with single family occupancy but also preclude uses closely approximating boarding houses, dormitory and institutional living. Such an enactment — if carefully drawn — would be both reasonably related to the end of maintaining a peaceful family residential style of living — an end we uphold as a legitimate goal of zoning — and yet be neither excessive nor overreaching in its sweep.
The concept of zoning for a singlе housekeeping unit is not novel.4 Many zoning ordinances have already gone beyond the notion of restricting single family dwellings to a con- ventional family unit and have permitted occupancy by a limited number of unrelated persons living together as a single housekeeping unit. See, e.g., ordinances construed in Palo Alto Tenants’ Union v. Morgan, 487 F. 2d 883 (9th Cir. 1973), cert. denied, 417 U. S. 910, 94 S. Ct. 2608, 41 L. Ed. 2d 241 (1974) (ordinance defining “family” to
Courts have similarly broadened the definition of family by focusing on whether a single housekeeping unit is in- volved. See, e.g., Brady v. Superior Court, 200 Cal. App. 2d 69, 19 Cal. Rptr. 242, 247-50 (1962); 2 Williams, American Planning Law § 52.01, at 350 (1974). Illustrative of this approach is City of White Plains v. Ferraioli, 34 N. Y. 2d 300, 357 N. Y. S. 2d 449, 313 N. E. 2d 756 (1974), where the court determined that a group home consisting of a married couple, their two children and 10 foster children constituted a single family within the meaning of the or- dinance. The zoning ordinance defined family in these terms: “A ‘family’ is one or more persons limited to the spouse, parents, grandparents, grandchildren, sons, daugh- ters, brothers or sisters of the owner or the tenant or of the owner‘s spouse or tenant‘s spouse living together аs a single housekeeping unit with kitchen facilities.” 357 N. Y. S. 2d at 451, 313 N. E. 2d at 738. The court em- phasized the significance of the fact that the home functioned as a single housekeeping unit and in every outward respect, was a “relatively normal, stable and permanent family unit.” Id. at 452, 313 N. E. 2d at 758. It concluded in reasoning pertinent here, that
Inherent in the above well-reasoned passage is an aware- ness of the fact that “[t]he concept of a one family dwelling is based upon its character as a single housekeeping unit.” 3 Rathkopf, The Law of Zoning and Planning 200 (Supp. 1975). We adopt this reasoning and conclude that by its force, without resort to the protective legislation concerning group homes, that portion of the Mantoloking ordinance im- posing what we find to be an unduly restrictive definition of the concept of “family,” must fall.
It is our judgment that Graewill House need not cease its operation; that it violates neither restrictive covenants of record, nor the Borough‘s zoning provisions, the latter, to the extent indicated above, having been held invalid. Accordingly all forms of relief sought by plaintiffs are denied.
Judgment is affirmed.
CONFORD, P. J. A. D., Temporarily Assigned (dissenting). I am of the view that plaintiffs are entitled to injunctive relief because the State is conducting a therapeutic, in- stitutional operation on the former Graessle property which violates the letter and the spirit of the valid neighborhood scheme created by the restrictions and covenants in the deeds mentioned in the majority opinion.
To say that this building is now used as a “dwelling” within the intent of the restrictions simply because 12 children live there (each for several months at a time) and to ignore the fact that the children are regularly and sys- tematically afforded special therapeutic, nursing and educa- tional attention, as well as ordinary care, by a State-employed staff of half a dozen people, is to close one‘s eyes to the fаct that in every significant and realistic sense this is an
I am conscious of the rule invoked by the court that land restrictions are ordinarily strictly construed, but the casе to which reference is had, Bruno v. Hanna, 63 N. J. Super. 282 (App. Div. 1960), also states that “the rule of strict construction will not be applied to defeat the obvious pur- pose of a restriction.” Id. at 287. Moreover, it is cardinal that where a common scheme exists, the court must consider the objects and purposes of the original promoters and the circumstances under which the restrictions were created. De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, 341-43 (Ch. 1892), aff‘d, 67 N. J. Eq. 731 (E. & A. 1894); Petersen v. Beekmere, Incorporated, 117 N. J. Super. 155, 168-69 (Ch. Div. 1971); see Riverton Country Club v. Thomas, 141 N. J. Eq. 435, 440 (Ch. 1948), aff‘d 1 N. J. 508 (1948); Wagenheim v. Willcox, 105 N. J. Super. 263, 266 (Ch. Div. 1969); cf. Hammett v. Rosensohn, 26 N. J. 415, 423 (1958).
Conceding, arguendo, that the rule of strict construction would not treat the deed restrictions here as prohibitive of more than one family in a dwelling,1 there can be no reason-
Against the background of this operation, where children are kept for a few months until improved to the point of being placeable in a foster home or other facility, and are no part of the normal surrounding community, the property has become an agency for treatment of children, not their “dwelling“, within the true intent and purpose of the re- strictive scheme, reasonably interpreted.
Applying the foregoing precepts to the convincing evidence adduced by plaintiffs concerning the original objects and purposes of these restrictions, and their practical construc- tion ever since, there can be no fair doubt that the current use of this property violates the neighborhood scheme. The resulting damage to plaintiffs is obvious and substantial, as amply attested by the record.
In view of the foregoing, I would enjoin the violation of the neighborhood scheme, and find it unnecessary to con- sider the matter of the asserted zoning violation.
For affirmance — Chief Justice HUGHES and Justices MOUNTAIN, SULLIVAN, PASHMAN and SCHREIBER — 5.
For reversal — Judge CONFORD — 1.
MOUNTAIN, J.
ASSOCIATE JUSTICE
Notes
FIRST. That no building of any kind shall be erected оr per- mitted upon the said lot excepting a dwelling house and its ap- purtenances, including a garage for private use only.
SECOND. That only one dwelling house shall be permitted upon such lot.
* * * * * * *
SIXTH. That the said premises shall not be used for mauufactur- ing or for any dangerous, noxious or offensive purposes, or for the erection and maintenance of a public garage or oil station.
The deed conveying adjoining property, which included the land subsequently owned by defendants Graessle contained the following restrictions:
FIRST. That only six dwellings (including private garage with each) shall be erected on said tract, said houses to be situated as follows: two between Ocean Avenue and the Ocean, two on the west side of Ocean Avenue, and two facing Barnegаt Bay.
SECOND. That no other building of any kind is to be erected on said tract.
* * * * * * *
SIXTH. That the said premises shall not be used for manufactur- ing or for any dangerous, noxious or offensive purposes, or for the erection and maintenance of a public garage or oil station.
But note that in the Bruno case, supra, which apparently so held, the court mentioned the reference by the trial court to the fact that numerous multi-family dwellings in the area of the subject property confirmed the concordant practical interpretation of the deed lan- guage. 63 N. J. Super. at 285. The practical construction of the instant restrictions, however, has uniformly been for single-family dwellings only.No zoning ordinance shall, by any of its provisions or by any regulation adopted in accordance therewith, discriminate between children who are members of families by reason of their relation- ship by blood, marriage or adoption, and foster children placed with such families in a dwelling by the Division of Youth and Family Services in the Department of Institutions and Agencies or а duly incorporated child care agency and children placed pur- suant to law in single family dwellings known as group homes. As used in this section, the term “group home” means and includes any single family dwelling used in the placement of children pur- suant to law recognized as a group home by the Department of Institutions and Agencies in accordance with rules and regulations adopted by the Commissioner of Institutions and Agencies pro- vided, however, that no group home shall contain more than 12 children.
The term ‘group home’ means and includes any single family dwelling used in the placement of 12 children or less pursuant to law recognized as a group home by the Department of Institutions and Agencies in accordance with rules and regulations adopted by the Commissioner of Institutions and Agencies; provided, however, that no group home shall contain more than 12 children.
It goes on to provide,
No municipality shall enact a planning or zoning ordinance gov- erning the use of land by, or for, single family dwellings which shall, by any of its terms or provisions or by any rule or regula- tion adopted in accordance therewith, discriminate between chil- dren who are members of such single families by reason of their relationship by blood, marriage or adoption, foster children placed with such families in such dwellings by the Division of Youth and
Family Services, and children placed pursuant to law with families in single family dwellings known as group homes.Any planning or zoning ordinance, heretofore or hereafter en- acted by a municipality, which violates the provisions of this sec- tion, shall be invalid and inoperative.