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Michaels v. Township Committee of Township of Pemberton

Decided: June 30, 1949.

ERNEST MICHAELS, PLAINTIFF,
v.
THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PEMBERTON IN THE COUNTY OF BURLINGTON ET AL., DEFENDANTS



Proctor, J.s.c.

Proctor

This suit, in lieu of a prerogative writ, is one that would have been in the nature of mandamus and certiorari under our former practice. Plaintiff seeks to set aside an Ordinance for the Regulation and Licensing of Trailer and Tourist Camps in the Township of Pemberton, Burlington County, New Jersey, which was adopted April 21, 1948, by the governing body of that municipality. The plaintiff further seeks to set aside the decision of the Township Committee wherein it denied plaintiff's application for a permit for which the plaintiff applied for the operation of a trailer and tourist camp. Plaintiff further seeks the aid of the court to compel the aforesaid Township Committee to issue the desired permit to the plaintiff.

The defendants base their denial of the permit to the plaintiff on the ground that plaintiff failed to comply with the health requirements of the aforesaid trailer ordinance and also that the trailer camp site for which the plaintiff seeks a permit is within a restricted residential area as defined by the zoning ordinance adopted by the Township of Pemberton on August 4, 1939.

Plaintiff, in rebutting the contentions raised by the defendants, urges that the aforesaid trailer camp ordinance is unconstitutional and void for the reason that it does not lay down any standard by which the municipal officials shall be governed in the granting or denial of permits provided for in the ordinance; that the defendants in denying plaintiff's application for a permit acted in an arbitrary and capricious manner; and finally, that the zoning ordinance furnished no justification for the defendants' denial of the plaintiff's application for a trailer camp license.

The trial of the case consumed two days. At the hearing there was much conflicting testimony as to whether or not the trailer camp now used by the plaintiff affects the health and safety of the community. The undisputed facts show that the township adopted a zoning ordinance on August 4, 1939, which created a residential district and a business district. It further appeared that subsequent to the enacting of the zoning ordinance the plaintiff established and maintained

a trailer camp in that part of the municipality delineated in the zoning ordinance as a "Residential District" and has continued to maintain it up to the present time. It further appeared that on April 21, 1948, the township adopted the Trailer, Tourist Camp Ordinance which provided, inter alia , that no trailer camp could be maintained without a permit. It appeared further that the plaintiff applied for a permit under the trailer ordinance, which application was denied on September 11, 1948. Members of the Township Committee testified that they ascribed their denial for the reason that the trailer camp site of the plaintiff was located within the restricted area under the zoning ordinance of 1939, and that the camp site did not comply with the health regulations of the trailer ordinance of 1948.

It further appeared that there are now 38 trailers at the site wherein approximately 100 people are living.

On the second day of the trial plaintiff further contended the trailer ordinance was void by reason of the recent decision of the Appellate Division of Edwards v. Mayor and Council of the Borough of Moonachie , 3 N.J. Super. 10, 65 A.2d 78 (App. Div. 1949). In that case, however, it was conceded that the ordinance was solely for the purpose of revenue and not regulation. In the present case, while the ordinance has to do with the raising of revenue, it is also for the purpose of regulation. Therefore, it may be sustained as a proper exercise of police power under R.S. 40:48-2. See Prinz v. Borough of Paramus , 120 N.J.L. 72. The mere fact that a municipality may collect revenue under an ordinance does not preclude it from exercising its police power under such ordinance to reasonably regulate any business the unrestrained pursuance of which might affect the public health and safety. Certainly, as long as the revenue collected under the ordinance is such an amount as may be reasonably expended in enforcing the regulatory ordinance and for the added burden to the township, the ordinance cannot be said to be one for the raising of revenue only. The present ordinance calls for an annual license fee of $15 for each trailer space, which license fee is for the purpose of revenue. This

seems a reasonable amount for the added municipal burden imposed by a trailer camp. In any event, there is no proof before me that it is unreasonable or confiscatory, and the presumption is (until the contrary is shown) in favor of the validity and reasonableness of a properly enacted ordinance. American Grocery Co. v. Board of Commissioners of New Brunswick , 124 N.J.L. 293, 297.

Plaintiff contends the Trailer Ordinance is unconstitutional in that it vests arbitrary discretion in the governing body with respect to a business without prescribing a uniform rule of action.

The challenged section of the ordinance provides in section 2(c) as follows:

"The Township Committee shall thereupon make or cause to be made a thorough investigation upon the information contained in the application and other information which the Committee may obtain, and shall determine whether or not such permit shall be granted, and if granted, may fix the terms under which the said permit is granted."

Plaintiff has cited the case of Yick Wo v. Hopkins , 118 U.S. 356, 30 L. Ed. 220, which holds that an ordinance which gives arbitrary power to the governing body to give or withhold consent not only as to places ...


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