Plaintiff prosecutes this civil action to determine the legal status of an ordinance of the Borough of River Edge, adopted May 2, 1949, entitled "An Ordinance Regulating the Subsequent Location of Buildings and Other Structures on the North Side of Main Street Between Bogert Road and Kinderkamack Road in the Borough of River Edge, Bergen County, New Jersey." The ordinance establishes a building set-back line 67 feet from the northerly side-line of Main Street; 30 feet from the easterly side-line of Bogert Road; and 30 feet from the westerly side-line of Kinderkamack Road. The ordinance prohibits the erection of any building, or other structure, between the set-back lines, as established by the ordinance, and the street lines. The northerly side of Main Street, between Bogert Road and Kinderkamack Road, is one long block -- approximately 1,000 feet. It is zoned for business to a depth of 200 feet. The set-back restrictions in the aforesaid ordinance affect only land in that one business block.
Main Street is 50 feet wide. Its southerly side, between Bogert Road and Kinderkamack Road, is two blocks long. This side of the street lies in a single-family residence zone, except the westerly end, which lies in a business zone, where it fronts on State Highway Route No. 4.
The legitimate, or authentic, zoning ordinance of the Borough of River Edge requires all buildings, in a residence zone, to set back 30 feet from the abutting street line. In a
business zone, the zoning ordinance requires all buildings to set back 25 feet from the abutting street line. The zoning ordinance was adopted August 9, 1943, pursuant to the provisions of Article 3, Chapter 55, of Title 40 of the Revised Statutes. (This is the Article of the Revised Statutes which authorizes municipalities to adopt zoning ordinances.)
Section 2, of the ordinance here under review, expressly states that it was passed pursuant to Article 3, Chapter 55, of Title 40 of the Revised Statutes. However, it was not adopted pursuant to Section 40:55-35, which is the section of said Article 3 that authorizes amendments to zoning ordinances.
Only two buildings are located on the northerly side of Main Street between Bogert Road and Kinderkamack Road. The building nearer Bogert Road, extending approximately 890 feet along Main Street, is known as the Huffman-Boyle building. It is occupied by a large store where home furnishings and appliances are sold, and by a variety of small stores: a shoe store, bakery, candy shop, drug store, delicatessen, and several other stores. The other building, which is nearer Kinderkamack Road, is a large A & P super-market. These two buildings stand about 120 feet apart, and they set back 67 feet, or more, from the northerly side of Main Street. The vacant space between the two buildings and the unoccupied frontage between the two buildings and the northerly side of Main Street is paved and reserved for parking automobiles. There are several single-family dwellings on the southerly side of Main Street, which set back about 30 feet from the street-line.
Bogert Road and Main Street intersect on the northeasterly side of State Highway Route No. 4. Bogert Road ends there, but Main Street continues, on the opposite side of Route No. 4, into Hackensack. As a general rule, the traffic on all three thoroughfares entering this intersection is heavy, and there are, of course, several lanes of converging traffic at these crossroads, resulting in a risky criss-crossing of traffic. A captain in the police department of River Edge testified that, in his opinion, a building, if erected at the corner of Bogert
Road and Main Street, would seriously interfere with the view of motorists on Main Street, who are on the lookout for traffic emerging from Bogert Road onto Route No. 4, and that such a building would also obstruct the view of motorists on Bogert Road watching for traffic coming out of Main Street onto Route No. 4.
The northerly side of Main Street and the easterly side of Bogert Road form an acute angle, where they meet, of 66 degrees, 41 minutes, and 30 seconds. The crotch, formed by their intersection, however, is rounded, so that traffic from Main Street can more readily turn and enter Bogert Road -- or vice versa. The irregular lot, or plot of land, located in the nook, at the juncture of these two streets, is owned by the plaintiff. The lot is approximately 55 feet long on Bogert Road, and has an average width of 22 feet. The whole lot lies between the street lines and the building set-back lines established by the ordinance here under review.
The Constitution of New Jersey significantly recognizes and affirms the natural and unalienable rights of liberty, and the right to possess and protect property (Art. 1, par. 1, N.J. Const.). Among those prerogative rights of a property owner is that of using his property for his own advantage and enjoyment, and such a right is a liberty as well as a property right (People ex rel. Schimpff v. Norvell , 13 N.E. 2d 960, 368 Ill. 325). Hence, a zoning regulation which limits or restricts an owner of property in his freedom of use deprives such owner, ...