This is plaintiff's motion for summary judgment on the first count of its complaint and, briefly, seeks to vacate and set aside so much of the zoning ordinance of defendant municipality as fixes the minimum size of dwellings, charging that such provision is unreasonable and arbitrary and was adopted without consideration of the character of the districts and the suitability of the particular properties; is an unreasonable exercise of the powers given to the defendant by the Constitution and laws of the State of New Jersey; is an unreasonable burden on the use of private property and confiscatory, and constitutes a taking of private property without due process of law.
There is no genuine issue of fact. On July 12, 1949, defendant adopted a revised zoning ordinance covering the entire township, which was to be divided into four districts, namely, Residence District "A," Residence District "B." Business District and Industrial District. The ordinance, under Section 3, subdivision (d), "Minimum Size of Dwellings," provided that:
"Every dwelling hereafter erected or placed in a Residence 'A' District shall have a living-floor space, as herein defined, of not less than 768 square feet for a one story dwelling; of not less than 1000 square feet for a two story dwelling having an attached garage; of not less than 1200 square feet for a two story dwelling not having an attached garage. For the purpose of this section the second floor shall have a ceiling height of not less than 7 feet, measured at the eaves from the floor to the underside of the rafters."
As the same requirement for minimum size of dwellings is set forth for Residence "B" Districts under Section 4, paragraph (d), and by specific reference is incorporated in Business
Districts under Section 5, paragraph (e), and Industrial Districts under Section c, paragraph (b)-1, the result is that a uniform minimum size of dwellings, in accordance with the standards particularly described for Residence "A" Districts, as above set forth, prevails throughout the entire municipality.
N.J.S.A. 40:55-30 provides that:
"Any municipality may by ordinance, limit and restrict to specified districts and may regulate therein, buildings and structures according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, and the exercise of such authority, subject to the provisions of this article, shall be deemed to be within the police power of the state. * * *
"The authority conferred by this article shall include the right to regulate and restrict the height, number of stories, and sizes of buildings, and other structures, the percentage of lot that may be occupied, the sizes of yards, courts, and other open spaces, the density of population, and the location and use and extent of use of buildings and structures and land for trade, industry, residence, or other purposes."
N.J.S.A. 40:55-32 clearly provides the basis for a proper determination of the present controversy, and it reads as follows:
"Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality."
Through the years there has been a gradual broadening in the legal concept of valid zoning restrictions, and, as was held in Duffcon Concrete Products v. ...