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420 Broad Ave. Corp. v. Borough of Palisades Park

Decided: August 30, 1948.

420 BROAD AVE. CORP., PROSECUTOR,
v.
THE BOROUGH OF PALISADES PARK, DEFENDANT



On writ of certiorari.

For the prosecutor, Ford & Taylor.

For the defendant, Max Eisenstein and Louis Eisenstein.

Before Justices Donges, Colie and Eastwood.

Donges

The opinion of the court was delivered by

DONGES, J. On May 13th, 1947, the governing body of the Borough of Palisades Park adopted an ordinance entitled, "An ordinance to amend an ordinance entitled 'An ordinance to limit and restrict to specified districts or zones, and to regulate therein, buildings and structures according to their construction and the nature of and extent of their use, in the Borough of Palisades Park, N.J.'"

The amendment added to the zoning ordinance of 1939 paragraph 21 to subsection (c) entitled "B Districts -- Business -- of section 5, entitled 'Regulations and Restrictions,'" which reads:

"21. No premises shall be used, and no building shall be erected, altered, or remodeled which are arranged, designed or contemplated to be used for the conduct and operation of the business of selling, buying, storing or trading in second-hand or used automobiles."

Thereafter, on November 3d, 1947, application was made to the borough building inspector for a permit for the construction of a "building and used car lot" in said municipality. This was refused by the building inspector as being in violation of the borough ordinance. No further steps were taken by the prosecutor to secure said permit and the certiorari allowed in this case seeks to attack only the validity of the ordinance.

Prosecutor attacks the validity of the ordinance upon the ground that that portion of the questioned ordinance which attempts to control the use of vacant land separate and apart from the "buildings and structures" thereon is invalid "as without constitutional or statutory authority."

It has been repeatedly held that the power of a municipality to limit the use of lands is within the police power. In Duffcon Concrete Products, Inc., v. Cresskill, 137 N.J.L. 81, Mr. Chief Justice Case said: "The authority of government to impose limitations upon the use and employment of private property rests upon two sources, first, the police power inherent in government to promote the safety, health, morals and general welfare of a community, and, second, the zoning

provisions in our constitution and the ancillary statutes and ordinances passed thereunder." Cf. Midland Park Coal, &c., v. Terhune, 136 Id. 442, opinion by Mr. Justice Eastwood, where it is said: "The argument that there is no constitutional or statutory authority to regulate by zoning, the use of vacant land has been disposed of adversely to prosecutor in ...


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