[13 NJSuper Page 492] This proceeding in lieu of prerogative writ seeks to set aside the provisions of the zoning ordinance of the Township of Wayne with respect to the minimum size
requirements of dwellings, plaintiff charging that the ordinance is unreasonable and constitutes an invalid exercise of the police power of the municipality.
The matter came before this court some time ago on motion for summary judgment and its then determination is reported in 8 N.J. Super. 468, the Appellate Division, however, holding in 9 N.J. Super. 83 that summary judgment was precluded, as a factual issue had been properly presented.
After a painstaking inquiry into the facts, it is difficult to perceive any genuine or material dispute. 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, sub-division (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 1,000 square feet for a two story dwelling having an attached garage; of not less than 1,200 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 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 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 ...