For prosecutors, Koestler & Koestler (Samuel Koestler).
For the defendants, John B. Molineux.
Before Justice Case, sitting as a single justice pursuant to the statute.
The opinion of the court was delivered by
CASE, J. The nub of the dispute is whether the following provision of the Borough of Metuchen zoning ordinance is constitutional:
Article IV 1(d): "An application for a permit for construction of or remodeling to a three or more family dwelling,
apartment house, hotel, hospital, club house, sanitarium, or a cemetery, shall be made first to the Zoning Board of Adjustment who shall hear the application in the same manner and under the same procedure as the Zoning Board of Adjustment is empowered by law and ordinance to hear cases and make exceptions to the provisions of a Zoning Ordinance, and the Zoning Board of Adjustment may thereafter recommend in writing to the Borough Council that a permit be granted, if in its judgment, the said building or cemetery as it is proposed to be located, will not be detrimental to the health, safety and general welfare of the community and is reasonably necessary for the convenience of the community. Whereupon the Borough Council may, by resolution, approve or disapprove such recommendation and in case such recommendation shall be approved, the Zoning Inspector shall issue a permit for such structure or use."
Weininger is the owner of and Bass the contractor for the erection in question. They have begun the building of a low rental housing project in District "C" a "heavy" manufacturing zone, and have been made defendants in numerous suits by the municipality for failure to obtain the zoning permit required by the ordinance. The only prohibitions set up by the ordinance in District "C" are the manufacture of nitroglycerine and other high explosives, the manufacture of fertilizer from animal substances, the refining of crude oil or petroleum and a trade or industry that is noxious or offensive by reason of the emission of odor or gas. The development instituted by prosecutors consists of three one-story buildings comprising in all twenty three-room units intended to house twenty families. The ordinance nowhere prohibits such a construction or use. It nowhere prohibits the construction of any of the erections enumerated in the quoted section. Further, it does not, except under the conditions named in section 1(d), supra, authorize the construction in any zone. In effect it excludes three-family houses except upon (1) the recommendation of the Zoning Board of Adjustment that (a) the particular building will not be detrimental to the health, safety and general welfare and (b) that it is reasonably
necessary for the convenience of the community and (2) approval by the borough council of such recommendation. Respondents contend that the disputed provision is within the general police powers of a municipality, cite Schnell v. Township Committee, 120 N.J.L. 194, approved by the Court of Errors and Appeals in First Church v. Board of Adjustment, 128 Id. 376, in support of their contention and frankly admit that the ordinance provision is faulty unless it comes within the principle so enunciated. The issue is not made to depend upon the details of the proposed structures beyond the fact that they involve anticipated occupancy by three or more families. The controversy narrows down to the significance of a three-family use and whether that use and pertinent erections may be negatively excluded from all parts of a municipality except upon a successful address by a property owner to the discretion of two municipal bodies.
Prior to the 1927 zoning amendment to our constitution there was much uncertainty about and dissatisfaction with the extent to which municipalities could control the character of structures and uses. The question was how far government could, under its police powers, protect the public welfare by limiting the uses of private property against the will of the owner. The legislature passed chapter 146, Pamph. L. 1924, which by its terms gave municipalities the authority inter alia "to regulate * * * the location and use of buildings, structures and land for trade, industry, residence or other purposes." But the courts whittled down the effective working of the statute upon the theory that "a legislature cannot confer upon a municipality any power the exercise of which will deprive one of the rights guaranteed him by the constitution." H. Krumgold & Sons v. Mayor, &c., Jersey City (decided October 19th, 1925), 102 Id. 170. See, also, Ignaciunas v. Risley, 98 Id. 712; State v. Nutley, 99 Id. 389; Frank J. Durkin v. Fitzsimmons, ...