For the prosecutor, George I. Marcus (Ralph W. Chandless, of counsel).
For the respondent, Weleck & Weleck (Charles W. Weleck, of counsel).
Before Justices Bodine and Jacobs.
The opinion of the court was delivered by
JACOBS, J. This matter is before the court pursuant to a writ of certiorari to review the validity of the provision of the amended zoning ordinance of the Borough of River Edge requiring 75 foot frontage in the residential zone and the action of the governing body in rejecting, as being in violation of the ordinance, a plan map submitted by prosecutor.
The prosecutor, Greenway Homes, is a developer engaged in erecting dwelling houses. It purchased tracts of land in the Borough of River Edge and built homes in accordance with plan maps which were submitted to and approved by the Borough of River Edge Planning Board in 1945. These homes were designated by the prosecutor as Greenway Homes
Section I and Greenway Homes Section II, and most of the plots therein had a frontage of 60 feet.
Thereafter the Planning Board recommended to the governing board of the borough that it adopt an ordinance prescribing a minimum frontage of 75 feet in the residential zones. On February 3d, 1947, and after compliance with statutory requirements pertaining to notice and hearing, the borough adopted an amendment to its zoning ordinance which contained a schedule providing for a minimum lot in the A residence zone of 7,500 square feet with 75 foot frontage. On March 5th, 1947, the prosecutor submitted to the Planning Board a proposed plan map which bore the designation Greenway Homes Section III, and which contemplated the erection of 56 homes, most of which would have frontage of 60 feet. This map was rejected by the Planning Board as being in violation of the ordinance of February 3d, 1947. Thereafter, the prosecutor submitted a revised map which contemplated the erection of 48 houses but still contemplated lots having less than 75 feet frontage. By letter dated April 15th, 1947, the Planning Board advised the Mayor and Council of the Borough that it had passed the "revised preliminary plan and recommends it to the Mayor and Council for approval to proceed with the final plans." On October 6th, 1947, a resolution was adopted by the Borough Council "that the plan of Greenway Homes Section III be rejected as the lots did not conform to the 75 ft. ruling." The writ of certiorari, by its terms, brings before us the ordinance of February 3d, 1947, and the resolution of October 6th, 1946.
The prosecutor's contentions are substantially (1) that the ordinance is invalid "as being arbitrary, capricious and unreasonable," and (2) that the Borough was unreasonable in failing to approve and act upon the recommendation of the Planning Board.
The Borough of River Edge may be described as a small suburban residential community which has been developed largely through the building of one-family houses. Its first zoning ordinance ...