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Visco v. City of Plainfield

Decided: March 1, 1948.

BENJAMIN VISCO, PROSECUTOR,
v.
CITY OF PLAINFIELD AND THE BOARD OF ADJUSTMENT OF THE CITY OF PLAINFIELD, DEFENDANTS



On certiorari.

For the prosecutor, George F. Hetfield.

For the defendants, Salvador Diana.

Before Justices Bodine, Heher and Wachenfeld.

Heher

The opinion of the court was delivered by

HEHER, J. Prosecutor complains of the action of the local board of adjustment dismissing his petition for leave to erect a one-story cement block addition -- 14 ft. x 16 ft. -- to a building in the rear of his premises Nos. 1162-1168 West Front Street, in Plainfield, for produce cold storage and garage uses, and thus for business, in an area zoned for residential uses by the local zoning ordinance. The property has a frontage of 81.3 feet on West Front Street and a depth of 128.16 feet on one side and 142.67 feet on the other, or a mean depth of approximately 135 feet. It is situate between Emma Street and Mariners Place; and all the lands on the northerly side of West Front Street between these streets, to a depth of 100 feet, are zoned for business, and beyond that depth for "C" residence uses.

The points made are (1) that under the ordinance the rear 35 feet of prosecutor's property are usable only for residential purposes, and the area is insufficient in size for such use, and the regulation therefore deprives him of all use and enjoyment of his portion of his lands in violation of article I, paragraph 16 of the State Constitution of 1844, as amended, providing that private property shall not be taken for public use without just compensation -- citing Passaic v. Paterson Bill Posting Co., 72 N.J.L. 285; and (2) that, for the same reason, the action of the board of adjustment was arbitrary, capricious and unreasonable.

Use zoning in the exercise of the police power pursuant to article IV, section VI, paragraph 5 of the State Constitution does not constitute the taking of private property for public use within the intendment of article I, paragraph 16 of the constitution. But it is requisite to the exercise of the zoning power that the regulation be reasonable and not arbitrary or confiscatory, i.e., it must bear a substantial relation to one or more of the considerations properly to be served by zoning; otherwise, the regulation would invade the constitutional right of private property. Brandon v. Montclair, 124 N.J.L. 135; affirmed, 125 Id. 367.

It is said that due to the varying depths of the properties abutting on West Front Street, it was "impractical" to constitute the rear lot lines the district boundary line, and so there is "an arbitrary setback of 100 feet" which renders the rear part of prosecutor's land unusable for residential purposes because of "insufficient area" or for business because within a residence zone, and the regulation is therefore confiscatory.

Thus, prosecutor seeks by indirection -- by means of a variance permissible only for the avoidance of "unnecessary hardship" -- what he concedes would be "impractical" in the exertion of the local legislative power; and this in itself would seem to expose the vice of his contention. The delineation of such use districts by the local legislative tribunal involves the exercise of a reasonable discretion, controlled by the statutory considerations; and there is no ground for judicial interference unless there has been arbitrary action. There was none such here. The location of the district boundary in a straight parallel line 100 feet back from West Front Street is not assailed as unreasonable or capricious, nor could it well be. The statute (R.S. 40:55-31, 40:55-32) empowers the local governing body to "divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes" thereof, and directs that the regulation of the structures in such districts shall be "with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of

property and encouraging the most appropriate use of land throughout" the municipality; and there is no deviation from this criterion in the zoning for business of the land abutting on West Front Street, to the depth indicated, and the restriction to residence uses of ...


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