McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by Wm. J. Brennan, Jr., J.A.D.
Plaintiffs appeal from an adverse judgment entered after trial in the Law Division, Bergen County, in a proceeding in lieu of prerogative writ whereby they challenged as unreasonable, arbitrary and capricious a 1949 amending ordinance to the 1932 zoning ordinance of the Borough of Englewood Cliffs. The amending ordinance changed all multi-family dwelling districts within the borough to single-family dwelling zones, except a district, or a part of a district, at the extreme north end of the municipality. Plaintiffs own a 17-acre tract in one and a two-acre tract in another of the affected districts.
The borough is a small residential community on the Palisades, bounded on the west by the City of Englewood, and by the Boroughs of Fort Lee on the south and Tenafly on the north. It overlooks Palisades Interstate and Allison Parks, which lie to the east along the Hudson River. Route 9-W, a principal highway for traffic to and from George Washington Bridge, which is distant about a mile and a half south, traverses the length of the borough and, within borough limits, is known as Sylvan Avenue. The community is on a plateau sloping east from Sylvan Avenue toward the river to Hudson Terrace, about 30 feet below, and sloping west from Sylvan Avenue to the boundary line at the City of Englewood.
The terrain throughout the borough is typical of the Palisades area with pronounced outcroppings of rock on the plateau, especially in the undeveloped wooded areas east of
Sylvan Avenue to Hudson Terrace where plaintiffs' 17-acre tract is located; the terrain to the west of Sylvan Avenue has also essentially a rocky base, although overlaid to a greater extent with earth and shale.
The borough has not had the experience of a large increase of population and the building of many new homes which has been common to many Bergen County communities since the opening of the George Washington Bridge in 1932, and which has been particularly pronounced since the end of World War II. Its 1932 population of about 900 has remained virtually constant and until the past year, when five new homes were built, not more than one or two houses were constructed there in any year since 1932. Builders and promoters of single-family dwelling projects, sites for which are now in short supply in the county, have inquired into the borough's possibilities for the purpose, but, as stated by one of plaintiffs' expert witnesses, "They didn't touch Englewood Cliffs. Why? On account of the rock." This rock condition requires an expenditure of from $3,000 to $4,000 for improvements on a lot 70 feet by 100 feet, particularly along the plateau, as compared with the cost of $600 to $700, and maximum of $1,000, required generally for that size lot in most communities of the county.
The borough, nevertheless, has always been, and is, primarily a community of single-family homes. No apartment house or other like multi-family structure has ever been built in the borough, although under the 1932 zoning ordinance such structures were permissible along the entire plateau facing the river front, and also in the southerly and middle segments of the municipality west of Sylvan Avenue, back to the City of Englewood line, and in the north end of the borough, about half way to the Englewood city line.
Plaintiffs purchased their 17-acre tract in 1945. It is located in the southerly end of the borough, east of Route 9-W or Sylvan Avenue and between that thoroughfare and Hudson Terrace. In 1949 they purchased, and now make their home on, the two-acre tract which has a large residence and out-buildings and is located on Floyd Street on the west slope.
On March 15, 1949, plaintiffs made an agreement with Lane Construction Company for the sale of about 13 acres of the 17-acre tract. That company thereupon sought the Borough council's approval of a plot plan suitable to the erection thereon of a garden-type apartment project. Residents of the borough protested by petition to the borough council. On June 23, 1949, the challenged ordinance was introduced and became effective July 14, 1949.
The amending ordinance is applicable to every area throughout the borough where multi-family structures had been permitted under the 1932 ordinance and now permits therein only single-family structures on lots 70 feet by 100 feet, except, as mentioned, in the extreme northerly end of the borough, where, however, there are presently no sewerage facilities.
The obvious purpose and effect of the amending ordinance is to preserve the character of the borough as predominantly a community of single-family homes. We concur with the trial court's finding that in the circumstances shown by this record plaintiffs have not sustained their allegation ...