*1 asked, returned and “Does the fact he they deliberating, her alter shot as the results of an (sic) argument .first murder verdict?” degree Certainly question required answer was that the crime not than murder in the higher found that lesser if it was committed in a degree jury engendered sudden transport passion quarreling. however, told the don’t I merely “I feel can judge, jury, that,” answer of or categorical yes no to then give from his re-read lengthy excerpts most charge dealing terms with the distinctions the several classes among homicidal crimes. Heher, J., joins this opinion. For Vanderbilt, Justice and Justices affirmance —Chief Burling
Ollphant, Wacheneeld, and Jacobs —5.
For reversal—Justices Heher and Brennan —2. INC., LAKE, PLAINTIFF-RESPONDENT,
LIONSHEAD WAYNE, TOWNSHIP OF DEFENDANT-APPELLANT. Argued February 11, 18, Reargued June 1952— 1952— Decided June 1952. *2 Mr. Edward James J. Markley Langan argued A. Mr. Broadhurst, the cause for the <& appellant Marlcley (Messrs. Stickel, III, Mr. Frederic G. on the attorneys; brief).
Mr. Reuben P. Goldstein the cause for the argued respond- ent.
The opinion of court was delivered by Vandebbilt, plaintiff, developer C. J. owner of a tract land in the defendant com- large township, menced this in lieu writ challenging action prerogative of the defendant’s validity fixing *3 the minimum size of and in of its dwellings certain placing a properties in residential On the motion plaintiff’s district. the trial court entered in its favor on the summary judgment count, first fix- aside the the ordinance setting provisions'of Lake, Inc., the minimum size v. ing Lionshead dwellings, Wayne 8 N. J. 468 Tp., aр- Div. On Super. (Law 1950). this peal was reversed Division of judgment by Appellate a Superior Court because of the existence of factual ques- Lake, trial, tion and the casé was remanded Lionshead for Inc., 1950). 9 N. J. 83 Wayne Div. Tp., (App. Super. is the most extensive Township Wayne municipal- It ity Passaic covers 25.34 miles com- County. square parison with the 23.57 miles of Newark. It has a square 11,815 437,857. population of with Newark’s comparison area Only of the total has been built township 12% Included within its are several lakes up. borders sizable (the having one located within the e. plaintiff’s development, g., a area of about 145 and as result a considerable aeres) number of its residencеs have been built summer for occu- a it is in fact a pancy only. Although political entity com- a posite of about dozen scattered residential com- widely munities, like developments from varying plaintiff’s $10,000, more ex- less than
where the home costs average $35,000 where the homes cost from pensive sections $75,000. little or industry. has but business had 12, 1949, after the com- years plaintiff
On four July Lake properties menced the of its Lionshead development there, and after a hundred houses had been constructed over the defendant a revised adopted dividing districts; districts the entire into four residence township district, A a and an industrial B, business district the town- proportion last but small сomprising very two area. In section 3 of the ordinance pertaining total ship’s A that: residence districts was provided Dwellings: “(d) Minimum Size of Every placed dwelling A Dis- hereafter erected or a Residence space, living-floor trict shall have a as herein defined. story dwelling; square than of not less feet for one square story dwelling having of not less than feet for two garage; an attached story dwelling than feet for a not hav- of not less two ing garage.” an attached These minimum size for were made requirements dwellings residence B districts section 4 applicable by (d) ordinance, indus- by to business districts section (c), trial districts section 6 the result that the being (b) same size requirements dwellings prevail the entire throughout township. Within the entire all the township only about 70% *4 meet the
existing dwellings requirements of ordinance; in some sections of as few as township 20% with the dwellings comply ordinance existing 'require- ments, in others them the plaintiff’s Lionshead (among Lake about are above the development) only prescribed 50% minimum, areas the while other of percentage compliance is far some of the more greater, reaching exclusive 100% The low in certain percentage compliance sections. areas is not however, particularly significant, for reason that township yet substantially undeveloped. Compli- ance with the ordinance in the future requirements will undoubtedly result houses nonconforming com- but a prising small even in minority those areas where they are now in the There was majority. testimony to effect that to build a house for year-round occupancy having minimum 768 feet of would from square living space cost $10,000 $13,000, if produced, mass and that only about the population were able to afford such financially 30% homes. The testified, witness who plaintiff’s so builder and developer, however, was hardly qualified, to express as to the opinion financial and ability present potential residents of and the-township his opinion as to construction costs was considerably out of line with that defendant’s expert who testified that homes with the complying could be and were $8,500 $9,300 built at being cost of if $7,500 for year-round $8,300 and if occupancy for seasonal use only.
To meet the plaintiff’s attack on the reasonableness of the ordinance the defendant produced health recognized public who that the expert, testified in a living-floor space dwelling had a direct to the mental relation and emotional health of its and occupants, that he had developed scientific standards for different families: 400 square size feet for one person 1,000 feet persons, for two square square feet for three 1,150 persons, feet square persons, 1,400 for four feet square 1,550 persons for five six feet for persons. These the witness considered as desirable rather goals than legal standards. He conceded that the housing standards pre- scribed agencies Federal Government are below those ordinance, written into the as are those of the New Jer- Minimum sey Code Construction One Requirements Family Dwellings, Two prepared by Department Development, Economic Division Planning Engineer- which, however, have does not of law ing (1946), force merely but is advisory. *5 the trial court evidence this and other considering
After ordi- of the size requirements the minimum concluded health, were public related to the reasonably were not nance unreasonable, police рowers and not within arbitrary and entered on was the defendant. Accordingly judgment of setting in favor the plaintiff first of complaint count of respect with of dwelling requirements aside the minimum size B districts which A and residence to the residence failed intro- The to located. plaintiff plaintiff’s property its com- the second count of any proof support duce in a of its property to the placing in which plaint objected the defend- granted The court therefore residential zone. sub- with but prejudice, a dismissal thereof ant’s motion for to that effect. judgment enter formal declined to sequently we to defendant certification granted of the petition On the trial court with to respect review the judgment enter judgment and its refusal to first count count. the second have been extended zoning municipalities
The powers 1947: IV, the Constitution VI, Art. Sec. by par. municipali- Legislature laws under which enact “The limiting ties, counties, may adopt zoning ordinances than other specified therein, buildings regulating restricting districts structures, construction, according to and the nature and extent their land, use, and the nature and extent uses and the of their authority police shall deemed to be within exercise of such power subject repeal shall be the State. Such laws or altera- Legislature.” tion statutes then in effect were amended by chapter 305 of the Laws of 1948 effect to the give expansion zoning power contemplated by addition of the italicized words to the provision of the 1844 corresponding Constitu- IV, VI, tion (Art. 5). Moreover, IV, Sec. par. by Art. Sec. VII, 11 of the par Constitution which had no counterpart Constitution, in the 1844 we are to con- required strue the constitutional and statutory provisions pertaining zoning liberally in favor of municipality: *6 provisions any concerning and “The of this Constitution of law municipal corporations government, concerning formed for local or counties, liberally powers in their shall construed favor. The of be municipal corporations only and such counties shall include not granted express necessary also fair those implication, terms but those of or powers expressly conferred, or incident to the or essential thereto, prohibited by and not inconsistent with or this Constitution byor law.” statutes,
When the R. 40:55-30 enabling zoning S. and both chapter amended 305 of the Laws of by 40:55-32, and R. are supra, S. read in the light constitutional construe them mandate to there can liberally, be no doubt that a has municipality by the suitable power ordinance to zoning impose re living-floor space quirements for N. J. A. dwellings. provides: S. 40:55-30 “Any municipality may ordinance, by specified limit and restrict to may regulate therein, buildings districts and ing and structures accord1 construction, usе, to their and and the nature of their and extent land, the nature and extent of uses of and the exercise of such authority, subject provisions article, to the of this shall be deemed * * * police power to be within the of the State. authority right The conferred this article shall include regulate height, stories, and restrict the number of and sizes build- ings, structures, percentage may occupied, other and lot that yards, courts, open spaces, density popu- sizes and other lation, buildings and the location and use and extent of use of and trade, industry, residence, purposes.” and land structures for or other N. J. S. 40:55-31 A. provides: purposes- body governing “For or all or said or boаrd of
public may municipality works divide the into districts of such number, shape, carry and area as be deemed best suited to out purposes article, may regulate of this and it and restrict erection, construction, reconstruction, alteration, repair, or use of buildings structures, or other and the nature and extent of the uses * ®” * land, within' such districts. purposes are zoning set forth in R. S. 40 :55-32 as follows: regulations comprehensive “Such shall be in accordance awith
plan designed following purposes; and for one or more congestion streets; safety fire, panic lessen secure from welfare; pro- health, dangers; promote or the morals other overcrowding air; prevent adequate light or of land vide buildings; regula- population. Such avoid undue concentration consideration, among other with reasonable shall be made tions suitability peculiar things, and its of the district character property conserving particular uses, the value of and with a view of throughout appropriate encouraging such use land the most municipality.” on the Legis conferred Thus not has the Constitution only acts with very pass enabling lature powers broad effec a like effort to make Legislature but the has given in this respect tive power its constitutional considerably powers expressed similar broad municipalities To thе traditional *7 detail than the Constitution. greater every legislative with the of validity presumption man moreover, the added, constitutional act there has been the in favor of liberally construe such date to legislation and statutory changes These constitutional municipalities. of the dissenting opinion have in effect adopted reasoning Johnson, Homes, Inc., L. 516 126 N. J. Brookdale v. the decision of the & and rendered inapplicable A. (E. 1941) invalid holding of Errors and Appears the Court of majority the size of minimum restrictions on ordinance imposing community prop a and character of dwellings protect Id., L. 603 Ct. therein, 1940), 123 N. J. (Sup. values erty & A. We are L. 516 1941). affirmed o. b. 126 (E. law and chаnges accordingly bound these in our organic b]' Adjustment City v. Board this court in Schmidt Newark, 9 that so as the long N. J. 405 has held (1952), by whatever reasonabfy designed, ordinance was zoning a means, advancement of as community to further social, unit, it is in wel and political economic the zoning power. fare and therefore exercise- of proper is whether in the light The before us underlying question zoning legislative provisions these constitutional and unrea township arbitrary ordinance of the defendant moreover, sonable. must be answered question, That this ease. We must bear in light particular of the facts of mind, that a finally, ordinance is like the law of zoning not Persians; the Medes and vаriances be may permitted, bemay amended, ordinance and if the proves unreasonable in be set aside time. operation may at Inc., Products, In Concrete Borough Cress Duffcon kill, 1 N. J. we said: (1949) may appropriate any particular property “What most be the use of depends only conditions, physical, social, not all economic prevailing municipality needs, present within the its and rea- sonably prospective, region but also on nature of the entire municipality which the is located and the use to which the land in region put advantageously.” or has been be most Wayne is still for the Township part sparsely most lakes, settled natural in its сountryside attractions great hills and streams, but it lies in the of the next obviously path onward wave of suburban Whether de- development. velopment shall “with a view of the value conserving property and the most use of land encouraging appropriate throughout such and whether it municipality” “prevent will of land overcrowding or and “avoid undue buildings” concentration of population” measure on the depends large wisdom governing body as ex- municipality pressed its zoning ordinance. as much official requires watchfulness to anticipate and prevent blight suburban it does to eradicate city slums.
Has a the municipality to minimum right impose floor area in requiremеnts the exercise of its zoning powers? Much of the adduced proof the defendant by township was devoted to that the mental and showing emotional health of its inhabitants on the depended size their proper of homes. We may take notice without formal that are proof there mini mums in below one housing may not without risk go which of health impairing the of those who dwell therein. One not does need extensive experience causes matrimonial to become aware the adverse of effect of on overcrowding the of most well-being important institution, our the home. expect Moreover, rightly into the country who move people freе out, and more land, room, indoors and more more living is generally possible dom in their scale of than living subur are to city. adaptable of not City housing standards But of children. ban to the upbringing areas especially health which of public from these considerations quite apart are floor-area standards overlooked, minimum cannot be wel general the the they promote justified ground and, fare seen in Schmidt the as we have community of Newark, 9 N. J. City the Adjustment Board of courts, the constitu conformance (1952), supra, a cited take tional and the statutes hereinbefore provisions The size of broad view of welfare. what constitutes affects'the charаc dwellings any community inevitably ter whether does much to determine community a live. It the pre or not it is desirable in which to is place the State that such throughout view vailing municipalities are protect minimum floor-area standards necessary A made community. survey Depart character of the in 1951 ment Economic Development of Conservation had municipalities reporting disclosed out In minimum of the Con dwelling requirements. light statutes, and of the of a munici enabling right stitution minimum impose beyond floor-area is pality requirements controversy. ordinance, however, the
With every zoning remains to whether or not in the facts question particular and in the all light the case сircum surrounding the minimum floor-area are requirements stances reasonable. living Can a minimum of floor of 768 feet for space square a 1,000 feet for one-story square two-story building; 1,200 an attached and of dwelling having garage; feet not two-story dwelling attached having garage a rural be deemed unreasonable in area just beginning community? significant suburban that the change admits that of 100 houses in its plaintiff development when requirements met constructed and 20 *9 more by voluntary additions of the to meet their in- owners dividual needs have been enlarged to conform to the mini- mum ordinance, of the this requirements while litigation has been pending 20 others have been constructed conform- to the ing ordinance. If some such were not requirements imposed there be would grave danger certain parts township, particularly around the lakes which sum- attract visitors, mer of the erection of shanties which would deteri- orate land values to the detriment in- generally great number creasing who live in people Wayne Township year round. The minimum area floor requirements imposed ordinance are not for a large family of normal size. Without some such restrictions there is always danger that after homes have been erected some character giving ato neighborhood others which might follow 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 lias township itself within sought safeguard limits which seem us altogether reasonable.
Two minor raised on this points remain to be appeal determined. The defendant contends that ac plaintiff’s tion is premature that no in application to building spector of the township was made and prior denied to making this attack ordinance. The is without point merit Bedminster; under Fischer v. 5 N. Township J. 534 (1950). the defendant Finally, contends the trial' court erred in to enter failing with judgment dismissing prejudice the second count of plaintiff’s complaint, fact despite that the defendant’s motion effect was be granted causе of the plaintiff’s failure to adduce proof sup We port thereof. fail understand the trial court’s reluc tance on this and are point that the opinion defendant is entitled to have its judgment dismissal prejudice duly entered. signed on the first judgment count com- plaintiff’s is reversed.
plaint Judgment shall be entered with prejudice *10 the com-
in on the second count of favor of the defendant plaint. a is Wayne The Township (concurring).
Jacobs, populated which is sparsely residential sprawling municipality Jersey Worth com- many and Like largely undeveloped. development; extensive munities it fertile for territory in it is a position unlike less fortunate still communities and which development ravages and control its avoid plan urbаn, and and observed in unplanned unsightly be suburban, municipalities. occasional board, In its through planning 1946 the township, acting master formulate professional city planner engaged he with and committee the board citizens plan. Working therein a submitted his and included recommendation plan liv that have minimum new every dwelling township 1,200 feet. After discussion considerable ing space square accept but township proposed declined to 12, 1949, that one- July did in its ordinance of provide feet, have not less than 768 that story square shall dwellings not attached shall have less two-story garages with dwellings that 1,000 square feet, two-story dwellings than and without 1,200 attached shall have not less than feet. garages all the of 768 feet was after approved weighing figure the fact that pertinent including during preced factors were ing year building permits for applications 85% and space 768 feet or more dwellings containing living 768 would enable the use of the further fact figure lumber” in 24' x 32' houses. The provisions “standard size were influenced dwellings con two-story aesthetic considerations which I believe to part by siderable v. Point See Point Pleasant Beach Pleas entirely proper. Pavilion, 222, ant 225 Div. 1949); 3 J. Super. (App. Homes, Johnson, Heher, J., Brookdale dissenting Inc. & 1941); Sayre, L. Aesthetics N. J. A. (E. Values, A. A. B. J. 471 Property (1949); Zoning: 50 Col. L. Rev. In Permissible Purposes, (1950). view, the Point I Pleasant case recently еxpressed which I adhere “that it is in the interest fully, public communities, feasible, our so far as be made pleasant should and that inviting considerations primary of attractive ness beauty might ap well be frankly acknowledged under propriate, circumstances, certain promotion welfare of our And in the Brookdale people.” n case that, Justice Heher the view expressed principle, on regulation aesthetic would seem within the grounds to be police “if far power so of the interests of the promotive pub *11 at lic through the resultant large, community development profit, as to the incidental restraint outweigh upon pri 1, vate N. ownershiр.” Wright v. 7 Vogt, 7 (1951); Cf. Wks., General Outdoor Adv. v. Co. Public Department of 149, 289 799, 193 N. Mass. E. 816 Jud. Ct. (Sup. 1935), Hoar, appeal dismissed General Outdoor Advertising Co. v. U. 725, 297 80 495, S. 56 S. Ct. L. Ed. 1008 (1936); Greene, v. 327, 332, 5, Perlmutter N. 259 Y. 182 E. 6 (Ct. To the extent that ex App. 1932). our earlier cases press outmoded narrower doctrines v. Passaic Paterson (see Co., Bill Posting 285, 72 N. J. L. 287 & A. (E. 1905)) they ought disavowed. to, expressly In the light modern understanding, living adequate space must be considered reasonable having relation health, particularly mental and health. See emotional Planning the Home Report issued by Occupancy for Committee on the Hygiene American Housing 17 1, Association, Public Health v. pp. (1950); Thompson Carrollton, 211 W. 2d City S. 970 (Tex. App. 1948); Civ. Hill, Flower Building Hill Village v. Flower 199 Corp. 344, Misc. 100 N. Y. 903 S. 2d Ct. (Sup. 1950). Simon Cf. Nеedham, 560, 516, Mass. 42 N. E. 2d L. R. 141 A. Jud. Ct. the trial Dr. (Sup. 1942). During below Winslow, Professor of Public Health at Yale for University over 30 years, forcefully testified to that effect and also pointed that “the out sense of due to inferiority living noticeable sub-standard homes does probably more damage unsanitary plumbing.” all the children than
the health of him have led His studies L. See 60 Yale J. 507 (1951). are 400 for goals present the view that the proper two, 1,000 750 for for one living person, feet minimum space in Wayne 1,150 four; average family for three and and four persons. between three Township contains in our State numerous communities be noted that there are living space requirements. which minimum have comparablе Section of Smith, Planning Mr. Herbert Ii. Chief De and Economic New of Conservation Department Jersey his replying testified that of 138 communities velopment, 21 which including inquiries requirements, 64 have such the entire throughout have a single applicable municipality. filed was attacked township’s by complaint
The plaintiff, in the Law Division in August, Lionshead Lake. Prior to developed which had corporation houses, including July, approximately had built than living space provided contained lesser many which ordinance; the ordinance addi since the adoption built, all the prescribed tional houses have been satisfying has not minimum living space requirements. plaintiff B. or variance under 8. any exception at time sought *12 40:55-39; and contrary obtained from the sought on that the ordinance lower court which determined judgment ‘A’ ‘B’ is “invalid with to Residence and District respect situated, and the same be which the is plaintiff’s property and and of no force and effect and for is set aside hereby Lake, Inc., v. Wayne, holden.” Lionshead 13 nothing Tp. of 490, 500 Div. Super. (Law 1951). plaintiff’s was to resume the construction of struc purpose apparently tures, ordinance, of the con discontinued upon adoption living 484 feet of The record contains taining square space. of these structures at one tiny point described photographs houses”; perhaps exсerpt as “doll from Jona following Blenheim, context, than Swift’s Verses on in other though not inappropriate:
179 “Thanks, very sir, I, fine, cried ’tis d’ye d’ye sleep, But where where or dine? find, by you telling, I all been have house, dwelling.” That ’tis a not a but It seems me that the lower court’s down striking township’s ordinance was erroneous. See clearly Thompson Carrollton, City v. an where supra, prescribing a minimum sustained; 900 feet was Dundee square Realty Omaha, Co. v. 448, Neb. W. 144 13 N. 2d 634 where (1944) an ordinance providing 1,000 for feet minimum for square one-story 1,200 and feet minimum for more dwellings square than one-story dwellings sustained; was likewise and Flower Hill, Hill v. Building Flower where Corp. Village supra, 1,800 court feet declined declare that mini square mum was invalid its face. Admittedly township’s ordinance was entitled to the benefit presumption validity reasonableness. Lumund v. Board Adjust ment Borough 4 Rutherford, 577, N. J. 586 (1950); Guaclides v. 405, N. J. Englewood Cliffs, 11 Super. Div.
(App. constituted 1951). important ac legislative tion best representing governing body’s judgment what zoning health, restrictions were promote required morals and welfare of the as a whole. community Decent its problems sincerity required its action remain unimpaired the absence of showing clear arbitrary, unreasonable, it was or beyond the authority Saunders, of the general Act. Zoning Ogden Wheat. Cf. 213, 270, 213, U. 6 L. Ed. S. I (1827). find no such showing record.
A witness for the plaintiff testified that at time the adoption of the ordinance thе cost of a house containing 768 square feet of if living space, produced, mass would $9,500 $10,500. approximate hand, theOn other another witness testified “that a year home, round con- one-family taining feet in area in all complying respects code of the building Township of Wayne would $8,500 presently $9,200.” cost between Applications *13 passage the ordi by filed since permits plantiff a.t even houses constructing that it was such nance indicated to indicate nothing The record contains lesser stated costs. Wayne of Passaic where County of residents power the buying 1953, issue of located, May although is Township County that Passaic 414) Sales estimates Management (at p. $6,000 annum of per effective income buying has average in county family, forty-ninth highest per represents I find no In the light foregoing the United States. ordinance that the minimum basis for the suggestion it is within clearly is event any unreasonably high; interests social should be allowed in the range broad which Newark, 9 Adjustment, v. Board progress. Schmidt Cf. N. J. 416 (1953). that has the ordi The further been advanced suggestion it frot differentiate between nance is defective does to the and is not related various sections of the township fact ignores number of This occupants dwelling. is footage that the minimum which prescribes only entire small commu enough to be applicable throughout If have a minimum nity. any neighborhоod ought higher ordinance; it will be dealt with in a later perhaps meantime is it restric present no harm done to will some later ordinance Similarly, perhaps attempt tions. minimum complex subject living to deal with tire of relating occupants; prescribed to actual the meantime space low to Uo sufficiently applied generally. matter i'86 family what be the size of the particular feet minimum will be a when significant step forward con trasted with the houses.” Mathematical plaintiff’s “doll attained; need precision in the ordinance not be is suffi cient its are cal comprehensive provisions reasonably culated to achieve ends which are within the broad ambit of Products, con proper day modern Concrete zoning. Cf. Duff Inc., Cresskill, 1 v. Borough Guaclides (1949); Englewood Cliffs, supra.
181 Finally has been made that the point ordinance does not comply in B. 40:55-32 that rea requirement 8. sonable consideration to the character of the given dis trict azrd its peculiar suitability for with a particular uses view of conserving value of property.
does not seek a a to convert business district residential into Inc., district, as in Scarborough Apartments, v. City of Englewood, 9 182 N. J. nor does it (1952), do violence to any of the existing neighborhoods. On the contrary, simply seeks to preserve improve acknowledged residential character of the entire See community. Guaclides v. Engle wood Cliffs, The improvement will conserve supra. property values 50 (cf. Sayre, Col. L. Rev. 213 supra; (1950)) and will the residential strengthen nature of every occupied neighborhood within township including Lionshead Lake. It is inconceivable that the Legislature in B. S. 40:55-32 or elsewhere in the Act Zoning contemplated the frustration of these highly desirable See goals. Greenway Homes v. River N. Edge, 137 J. L. 456 Ct. Birkfield (Sup. 1948); Com'rs, Co. Board alty City Orange, Re N. J. Super. Div. certif. (App. denied J. 1951), 319 (1951). I find (dissenting). I must dissent from
Oliphaht, and the philosophy result arrived at- in the majority opinion. has its Zoning purposes, but as I conceive the effect opinion it majority precludes individuals in thosе income brackets who could not $8,500 between pay' $12,000 for the erection of house on lot from ever estab- lishing residence in this community as the long square feet of is the living space requirement ordinance. A zoning provision that can produce this effect certainly runs afoul of the fundamental principles of our form government. It places an unnecessary severe restriction upon alienation of real estate. me,
not necessary, it seems to in order to meet any possible threat to the health and welfare .of community. the general that the threat borne in mind
It should be from springs community usually health welfare and rather the house maintained within that is type of home will be well-behaved families (cid:127)than the house itself. Certain they acts communities, not because barred from these because the income create, but simply they do or conditions at the them to a house will build not family permit *15 living to They in will be relegated this case. cost testified to even dwellings or in large multiple-family in the cities of their consider the welfare they be what though against it immediate families. that it in this ordinance is the
My difficulty provision with miles of to of the every part square applies equally 25% how the regard and without any it applies this township ap have been zoned. It community various districts B, A and Business or classed Residence tо the districts plies is conceivable that some While Industrial Districts. a and homogeneous be of such cohesive municipalities may certain uniform warrant the of imposition as to character viz., community, prohibition the entire on regulations in a community, residential purely industrial plants Cresskill, Products, Inc., Borough v. Concrete Duffcon Sons, Struyk Braen’s 17 Samuel (1949); N. J. b., J. affirmed o. 9 N. 1951), Div. Super. (App. is not of such township certainly the defendant (1952), a and is made up group is settled character. sparsely and in developments, communities or of widely separated minimum living floor developments space some of these are all easily the ordinance met by imposed by requiremеnts in sections a only minority while other existing dwellings imposed, plain meet the standards of the houses only about Lake development tiff’s Lionsliead 50% comply. dwellings on all space floor minimums living identical impose
To to fail municipality completely such the sections of to the the dis- whatever “character of consideration give any suitability for particular purposes.” its peculiar trict and imposed may legitimately While zoning regulations value by “conserving welfare district to serve uses of appropriate the most and encouraging of property and beyond unreasonable are land,” wholly regulations such with pri- interference an unwarranted zoning power change or operate if are they designed vate property rights worse, the character very for better or for completely, a reasonable must bear imposed district. Any regulation Insofar thereto. area particular subject relation to ordi- the minimum floor living space requirements and to community the entire under review apply nance are arbi- clearly they in particular, the plaintiff’s properties aside set and were very properly trary capricious power. of the zoning trial court as abuse not pro- do phase views this My particular districts house particular hibit minimum floor space in the housе space minimum floor or correlation of proper I agree but cannot and the area the lot lots question, or this mini- with the when state they majority it will ‘pre- that “whether mum footage requirements undue and ‘avoid buildings’ land or vent the overcrowding *16 measure on large the buildings’ depends concentration of body municipality.” governing wisdom of standard with respect of a lack of This is indicative clearly itself Act Zoning phase zoning to this particular board or the discretion of and it assumes amounts to wisdom. To body municipality governing further states: “We may the majority buttress their position there are minimums formal proof take notice without risk of im- one not without go below which hоusing In stat- those who dwell therein.” so the health of pairing theories advanced to certain they inferentially approve ing text writers and certain reports sustain this ordinance Development. of Conservation Economic the Department the minimum me that the decision as to what But it seems to be is essentially in a house should footage particular hav- Legislature within not legislative province, this court or it is not within the ing spoken power Development and Economic Department of Conservation in the statute. deficiency attempt supply I am .that Wachenfeld con- authorized to Mr. Justice say curs in this opinion. Vanderbilt, and Justices
For reversal —Chief Justice and Brennan —5. Heiier, Burling, Jacobs Oliphant For Waciibneeld affirmance—Justices —2. (PAUL) THE MATTER THE
IN OF APPLICATION OF PAULO CARUSO, APPELLANT, PRO SE. Argued June 1952 Decided June 1952.