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Brookdale Homes Inc. v. Johnson

Decided: January 13, 1940.

BROOKDALE HOMES, INC., PROSECUTOR,
v.
J. CORY JOHNSON, TOWN CLERK OF THE TOWN OF BLOOMFIELD, AND THE TOWN OF BLOOMFIFLD, RESPONDENTS



On certiorari.

For the prosecutor, William Huck, Jr.

For the respondents, Edward C. Pettit.

Before Justices Parker, Bodine and Perskie.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This is a zoning case. The question to be decided is whether an ordinance adopted by the town of Bloomfield on October 7th, 1935, is valid. This ordinance amends the original zoning ordinance of the town which was adopted on November 17th, 1930, and provides, so far as is pertinent to the instant case, for a "Small Volume Residential Zone A" wherein, "(b) Heights. No building shall be erected to a height in excess of thirty-five feet and no building shall be erected with its roof ridge less than twenty-six feet above the building foundation. A false front, cupola, tower or similar part of a building shall not be considered in computing the minimum height of a building." The ordinance was subsequently amended on July 6th, 1936, but the amendment is not involved in this proceeding.

The parties stipulated a greater portion of the facts and the stipulation was, by order of this court, made part of the record. From the return to the writ, the stipulation, and the depositions we learn that prosecutor is a corporation organized under the laws of this state and is engaged in the business of developing land and buildings. It owns several

tracts of land in "Small Volume Residential Zone A" in Bloomfield including premises known as No. 104 Renner avenue. On July 17th, 1939, the prosecutor made application to the inspector of buildings of Bloomfield for a permit to erect a one-family dwelling house on premises 104 Renner avenue and filed plans and specifications for that building. Those plans and specifications disclosed that the proposed building was to be only twenty-one feet high from its foundation to its roof ridge. The building inspector accordingly refused to issue the permit upon the ground that the ordinance hereinbefore mentioned prohibited the erection of any building in the zone in question less than twenty-six feet above the building foundation. Thereupon, we are told, that prosecutor made application on notice to the Chief Justice for a writ of certiorari to review the ordinances under date of November 17th, 1930, October 7th, 1935, and July 6th, 1936. The Chief Justice allowed the writ.

The parties have stipulated that all three ordinances were duly enacted, and prosecutor's contention is based solely on the claim that the ordinance under date of October 17th, 1935, is repugnant to the State and Federal Constitutions so far as it fixes a minimum height for buildings. We think the claim, under the circumstances exhibited, is meritorious.

It is settled that an ordinance under the Zoning act must bear a reasonable relation to the powers conferred by that act. Phillips v. Township Council, &c., Teaneck, 120 N.J.L. 45, 48; 198 A. 368; affirmed, 122 N.J.L. 485; 5 A.2d 698. Restrictions imposed pursuant to the Zoning act must tend at least in some degree to promote the public good; they must bear a "substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense." Nectow v. Cambridge, 277 U.S. 183; 72 L. Ed. 842; Gabrielson v. Glen Ridge, 13 N.J. Mis. R. 142; 176 A. 676; Phillips v. Township Council, &c., Teaneck, supra; Phillips Oil Co. v. Municipal Council, &c., Clifton, 120 N.J.L. 13; 197 A. 730; 179 Duncan Avenue Corp. v. Jersey City, 122 N.J.L. 292; 5 A.2d 68; Spur Distributing Co., Inc., v. Bridgeton, 122 N.J.L. 460; 6 A.2d 192. (Cf. Resciniti

v. Board of Commissioners, Belleville, 117 N.J.L. 1; 186 A. 439; Watchung Lake, Inc., v. Mobus, ...


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