On appeal from the Law Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Heher, J.
[3 NJ Page 203] The question here is the legal sufficiency of the provision of the local zoning ordinance limiting the use of each lot in a Residence "A" zone to a single dwelling house for one family and one accessory building for service as a garage, playhouse or greenhouse, but barred as a residence to all except "domestic employees of the tenant or of the owner of the premises." The issue was raised by a complaint
for relief in lieu of certiorari pursuant to Article VI, section V, paragraph 4 of the Constitution of 1947 and Rule 3:81-1 et seq., of this court. The regulation was sustained by Judge Lloyd in the Superior Court; and the landowner and her tenant appealed to the Appellate Division of that court. The case is here on certification for appeal by this court, acting ex mero motu in accordance with Article VI, section V, paragraph 1 (d) of the Constitution of 1947 and Rule 1:5-1 (a) of this court.
The zoning ordinance was adopted September 18, 1930. It defines "lot" as "a parcel of land, the location, dimensions and boundaries of which are determined by the latest official record;" and an "accessory building" as one "which is subordinate and accessory to a main building on the same lot," limited to the uses indicated. It provides, inter alia, that no accessory building in any zone shall be more than two stories in height, and no building of this class less than two stories in height "shall be used for residence purposes," and then only by the domestic servants of the tenant or owner.
The Wylies, husband and wife, either severally or jointly, had title to Lots Nos. 43, 44 and 45 in Block 207-A on the Tax Assessment Map of Margate City. These lots were formerly known as Lots Nos. 43, 44 and 45 in Block 206 on a Map of Winchester Gardens, No. 2, prepared by the owners of a tract of which they were a part, and approved by the local governing body. They are situate in a Residence "A" zone delineated by the ordinance. In 1938, Lorna Wylie, the wife of John F., erected a dwelling house on the forepart of Lot 44, and in the rear a two-story garage with dwelling quarters on the second floor. In dimension, Lot 44 as outlined on these maps was roughly 35 x 105 feet. On May 14, 1947, Wylie and his spouse conveyed to plaintiff Collins the rear 30 feet of Lot 44 and all of Lot 43, excepting a five-foot strip on the northerly side for a distance of 72 feet westerly from Exeter Avenue. As a result, so it is said by appellants, "a part of Lot 43 was given to Lot 44," and the rear 30 feet of Lot 44 "was given to Lot 43;" Lot 44 "was left with only one building upon it," the dwelling house, and Lot 43 "had
given to it the former garage building," and so Lots 43 and 44 each "thereafter contained only one building." On May 1, 1948, the plaintiff Collins leased to Lorna Wylie "the unfurnished apartment" in the garage building for the summer months of that year, and the Wylies entered into possession. John F. Wylie had rented the main dwelling house on Lot 44 to one Siever. The Wylies were not his domestic servants, but rather his landlords; and the local building inspector, in that capacity and as "enforcement agent" under the zoning ordinance, served on each plaintiff a "notice" of the "violation" of the ordinance, in that the accessory building was occupied by persons not the domestic servants of the occupant of the principal building. Thereupon there was an "appeal" to the board of adjustment; and the adverse action of that tribunal is the subject of the complaint interposed by the landowners and the tenant. The notices were not included in the appendix.
We pass the question of whether the "action" thus taken by the building inspector is reviewable by a proceeding in lieu of certiorari. The point is not made, and there is no occasion to consider it.
First, it is said that the common-law jus disponendi of the whole or a part of one's lands, declared by R.S. 46:3-5, has not so far been modified by R.S. 40:55-30 and 40:55-32 as to bar a "subdivision of lots" in the exercise of the zoning power conferred by those provisions; and that, at all events, the particular ordinance does not limit this "fundamental right of subdivision." Indeed, it is suggested that the right of alienation cannot be fettered by zoning regulations; and, moreover, it is denied that there has been such a grant of authority by the Legislature to the municipalities.
The use of lands and, by the same token, the jus disponendi are subordinate to the police power; and zoning is comprehended in the police power exerted by the amendment of October 18, 1927, to the State Constitution of 1844 (P.L. 1928, p. 820) and Article IV, section VI, paragraph 2 of the Constitution of 1947. The essence of zoning is territorial division according to the character of the lands and
structures and their peculiar suitability for particular uses, among other considerations, and uniformity of use within the division. Reasonable use restrictions in the exercise of the police power pursuant to the Constitution do not constitute the taking of the property for public use within the intendment of the constitutional mandate for compensation in such cases. All property is held in subordination to the police power; and the correlative restrictions upon individual rights -- either of person or of property -- are incidents of the social order, deemed a negligible loss compared with the resultant advantages to the community as a whole, if not, indeed, fully recompensed by the common benefits. There is a basic distinction between reasonable control of property for the public good and a "taking" of the property for public use. The touchstone of the reasonableness of the control is to be found in the relation of the regulation to the health, safety, morals, or the general welfare of the community. If there be a want of rational relation between the use restriction and one or more of the considerations within this general category, the regulation must be struck down as arbitrary and an invasion of the constitutional right of private property. Excesses in serving the public end in view are inadmissible. Mansfield & Swett, Inc., v. West Orange, 120 N.J.L. 145 (Sup. Ct. 1938); Brandon v. Montclair, 124 N.J.L. 135 (Sup. Ct. 1940); affirmed, 125 N.J.L. 367 (E. & A. 1940); Potts v. Board of Adjustment of Princeton, 133 N.J.L. 230 (Sup. Ct. 1945); Piaget-Del Corp. v. Kulik, 133 N.J.L. 485 (Sup. Ct. 1945); Visco v. Plainfield, 136 N.J.L. ...