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Mayor and Council of Borough of Alpine v. Brewster

Decided: April 16, 1951.

THE MAYOR AND COUNCIL OF THE BOROUGH OF ALPINE, PLAINTIFF-APPELLANT,
v.
MARY E. BREWSTER AND GEORGE L. BREWSTER, DEFENDANTS-RESPONDENTS



On appeal from the Chancery Division of the Superior Court.

For reversal -- Chief Justice Vanderbilt and Justices Case, Heher, Oliphant, Burling and Ackerson. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J. Case and Oliphant, JJ., concurring in result.

Heher

[7 NJ Page 45] The plaintiff municipality sues in equity to restrain uses of land and buildings alleged to be in contravention of the local zoning ordinance; and the essential question is whether such relief may be had under R.S. 40:55-47.

The equity division of the Superior Court dismissed the complaint before answer made on the ground that the acts thereby laid to defendants, singly or together, do not constitute a nuisance, and the court was without jurisdiction to enforce the zoning ordinance by the injunctive process at the instance of the municipality. The principle that, absent a nuisance, enforcement of a municipal ordinance may not be had by the equitable remedy of injunction was declared in Ventnor City v. Fulmer, 92 N.J. Eq. 478 (Ch. 1921), affirmed 93 N.J. Eq. 660 (E. & A. 1922); Srager v. Mintz, 109 N.J. Eq. 544 (E. & A. 1932); Baird v. Board of Recreation Commissioners of South Orange, 110 N.J. Eq. 603 (E. & A. 1932). These cases were deemed controlling.

The municipality's appeal to the Appellate Division was certified here for decision on our own motion.

The defendant Mary E. Brewster is the owner of three pieces of land within the borough: the first acquired by deed on July 16, 1934; and the second and third, on September 27, 1946. The zoning ordinance was adopted on November 14, 1939. These parcels were placed in a Residence "A" zone, restricted to single-family dwellings and accessory uses, including "private garages and any other customarily accessory building." By an ordinance adopted on October 11, 1949, the lands were included in "District R-1," limited to one-family detached dwellings "and private garage," defined according to the complaint as "garage facilities accessory to a residential building on the same lot used only for the storage of not more than four (4) non-commercial vehicles and not more than one (1) light truck used exclusively by the owner of the lot." It was provided that "All other garages shall be deemed public garages." The enforcement section of the ordinance directs that the "continuance" of a prohibited use, "or the erection of any building for said use, shall be a separate and distinct violation * * * for each day that said use is continued or that the building is erected or maintained to said use;" that a violation of any of the provisions of the ordinance shall entail a fine not to

exceed $200 for each offense, and in default of payment the violator may be imprisoned in the county jail for a term not to exceed 90 days, in the discretion of the magistrate; and that no provision thereof "shall be construed to prevent" the borough "from taking injunctive proceedings for the proper enforcement" of the ordinance.

The complaint avers that the Borough of Alpine is "a beautiful residential community" of 700 inhabitants, extending six or seven miles along the Palisades -- a community of "large estates and beautifully kept one-family residences," without "industrial or commercial uses" except "two small gas stations and a small store located in the section * * * designated for business;" that it is an area of "great scenic beauty" bordering on the State of New York, much of which is devoted to park purposes under the auspices of the Palisades Interstate Park Commission, and a mecca of tourists and travellers; that the State of New Jersey is now building "a parkway" through the borough, and large expenditures of money are being made "to maintain the beauty of this Ridge of the Palisades;" that the local "taxpayers have expended large sums of money on their property to maintain its beauty and have been attracted by the community and have maintained their homes there because of its freedom from noise, smoke, odor and commercialism;" and that it is local policy, established long since, to maintain the "residential character" of the community and to "prevent commercializing of the property." It is charged that the defendant George L. Brewster is using the lands in question and a building thereon "for commercial purposes in violation of the zoning ordinance," i.e. for the conduct of "the contracting business;" that he has "erected a gas tank" on the premises "and houses in said property large trucks which travel in and out of the property over the country roads of the Borough, carrying cinders and other building supplies;" that he has "stored upon said property diesel-driven tractors and a very large crane used for large construction work," and he has "also stored on the property building supplies, tires

and junk of every form and description together with old automobiles and equipment which he uses in his business together with additional booms;" that he uses other lands in the vicinity for "the storage of building materials;" and that "As a result of the violation, the large trucks, trailers and building equipment have caused destruction to the roads, have raised clouds of dust and have destroyed the residential character of the surrounding neighborhood and if continued will break down the residential character which the governing body and the residents have worked to maintain for such a long time;" that promises by defendants to cease the violations of the ordinance have gone unfulfilled; and that the continuation of this use "will cause financial hardship to the residents in the immediate area, will destroy land values in the borough and will defeat" the settled plan to maintain the Borough "as a residential community."

R.S. 40:55-47, as amended in 1949, empowers the local governing body or board of public works to provide by ordinance for the enforcement of the zoning act and of any ordinance or regulation made thereunder. Pamph. L. 1949, ch. 242, p. 779. It is further provided that in case any building or structure is erected, constructed, altered, repaired, converted, or maintained, or any building, structure or land is used in violation of the zoning statute, or of any ordinance or other regulation made pursuant thereto, the local authority, "in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful" structure or use, "to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land, or to prevent any illegal act, conduct, business or use in or about such premises." The earlier legislation was enacted pursuant to Article IV, Section VI, paragraph 5 of the Constitution ...


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