96 N.J.L. 117 | N.J. | 1921
The opinion of the court was delivered by
The Romar Realty Company, a corporation, is the owner of a tract of land fronting on Main street, in the borough of Haddonfield, in tire county of Camden. It planned to build one-story stores on the land within eighty feet of the building or fence line and caused to be drafted plans and specifications therefor. Upon application for a building permit, the prosecutor iras refused1 the permit and informed that tire erection of tire proposed one-story structures at the proposed place of location on the land was in violation of an ordinance of the borough adopted December 20th, 1915. which is as follows: ,
“An ordinance providing for the kind and location of buildings to be erected on King’s Highway, or Main street, in the borough of Haddonfield.
“Sec. 1. Be it ordained by the board of commissioners of the borough of Haddonfield that no building or parts of building in which the outside or party division walls are in whole or in part of frame shall be erected within two hundred feet of the house or fence line on any part of King’s Highwaj7, or Main street, without the consent of said board of commissioners; provided, that nothing in this ordinance shall be construed to prevent necessary repairs to buildings already erected without the consent of the said board of commissioners.
“•See. 2. Be it ordained that no' building of any kind less than two stories high shall be erected on the aforesaid street within eighty feet of said building or fence line without the consent of said board of commissioners.
“Sec. 3. Be it ordained that any person or persons or corporation violating any of the provisions of this ordinance shall on conviction thereof .pay a penalty of five hundred dollars.
*119 “See. 4. Be it ordained that all ordinances or parts of ordinances inconsistent herewith be and the same are hereby repealed, and that this, ordinance shall take effect immediately.”
It is the second section of the above ordinance under which the building permit asked by the prosecutor is refused. A writ of certiorari to review this ordinance was allowed, and has been brought on for argument before a singLe justice at chambers. The statutory authority for the passage of this ordinance is section 28c of the general act relating to boroughs (Rev. 1897), Comp. Stat., p. 242. This section provides as follows:
“Sec. 1. In addition to the powers now given to the council of the boroughs governed by the act to which this act is a supplement, the borough council of every such borough shall have power by ordinance to regulate, control and prescribe the method and manner of building, constructing’, altering or removing dwelling-houses and all other buildings or structures of every kind and nature, erected or to be erected in any such borough, and the kind and quality of materials, to be used therein, and to prohibit within certain limits, to be from time to time prescribed by ordinance, the building or erection of any dwelling, building or structure of -wood or other combustible material.”
The statute gives the authority to. regulate, control and prescribe the method and manner of buildings, &c. The section of the ordinance under consideration provides that no building of any kind Jess than two stories in height shall be erected on Main street within eighty feet of the building or fence line. This is not a regulation prescribing the method and manner of building, but a prohibition as to the building of one-story buildings, within the prescribed distance of the building line. To. be valid, it is conceded that it must be a proper exercise of the police power. It is obvious that the effect of the ordinance is to restrict the use of the owner’s land, if the land is located in that part of the street which is only available for one-story stores. To comply with the ordinance by placing one-story stores back eighty feet from the building line would, in a business communhy, be a detriment
The second section of the ordinance is not a proper exercise of the police power, in my opinion, and is invalid. This section of the ordinance, however, can be exscinded from the ordinance without destroying the effect of the remaining sections, so that the entire ordinance will not be held to be invalid, but only the second section thereof, for the reasons above given.