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Fred v. Mayor and Council of Borough of Old Tappan

Decided: December 27, 1951.

WALTER B. FRED, CHARLES DE WOLF, JAMES J. O'CONNOR, JOHN KLEIN, MARIA DREISBACH, THEODORE C. HANDWERG, HELEN WATSON, EDWARD YOUNGMAN, HAROLD SUNDEN, DOMINICK COPPOLO, RALPH COPPOLO, ANTHONY A. COPPOLO, CHRIS AND ANGELA CLASEN, FRANK HESS, WILLIAM HECKEL, M. M. COFFEY, FRED KRUGER, ROSE KOCH, RONALD F. ROTH, HOMER PURGOLD, OTTO LEIN, GENEVA C. LEIN, BLANCHE C. OCHSE, EVA OGLE, AND STEPHEN MICHALON, PLAINTIFFS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF OLD TAPPAN, DEFENDANT



Review in lieu of prerogative writ.

Leyden, J.s.c.

Leyden

On this review the dispositive question, as limited by the pretrial order, is the power of the municipality to pass an ordinance regulating the removal of soil. The plaintiffs contend the ordinance contravenes article I, paragraph 1, and article I, paragraph 20 of the Constitution of New Jersey (1947), as an invasion of the right to acquire, possess and protect property; that it takes private property for public use without compensation, and violates the due process clause of the 14th Amendment to the United States Constitution. The defendant insists the ordinance is a valid, constitutional exercise of the police power of the municipality.

Foreseeing the dangers inherent in the unregulated, uncontrolled removal of soil within its borders the mayor and council of the borough regularly adopted an ordinance entitled: "An Ordinance to regulate the removal of soil for sale or for use other than on the premises and providing penalties for the violation thereof." It contains a preamble, as follows:

"Whereas, the Mayor and Council of the Borough of Old Tappan find and determine that the unregulated and uncontrolled relocation, filling, excavation and removal of soil on a large scale has resulted in conditions detrimental to the public safety, health and general welfare, substantially hampering and deterring the efforts of the Borough of Old Tappan to effectuate the general purpose of municipal planning."

Substantially, the ordinance in section 1 provides that no one shall excavate or remove soil for sale, or use other than on the premises, except in connection with the construction of a building thereon and grading incidental thereto, without obtaining permission from the mayor and council; section 2 requires the filing of an application for permission for the removal of soil, together with a contour map of the premises and proposed contour grades resulting; section 3 makes provision for a hearing and sets forth the standards to be applied in granting or denying the application, to wit, consideration of the public health, safety and general welfare of the community, and more particularly soil erosion, drainage, soil fertility, lateral support, slopes and grades, and land values and uses; section 4 controls the manner of removal; section 5 requires the retention and re-spreading of at least six inches of top soil; section 6 requires the posting of a bond for the faithful performance of the work; section 7 prohibits the removal of soil without a permit, and section 8 provides penalties for the violation.

Without question the ordinance does impose limitations and restrictions upon the use and enjoyment of private property, but that in itself does not make it offensive in the constitutional sense.

"The authority of government to impose limitations upon the use and employment of private property rests upon two sources, first, the police power inherent in government to promote the safety, health, morals and general welfare of a community, and, second, the zoning provisions in our constitution and the ancillary statutes and ordinances passed thereunder." Duffcon Concrete Products, Inc., v. Borough of Cresskill , 137 N.J.L. 81 (Sup. Ct. 1948), reversed on zoning question, 1 N.J. 509 (1949).

The Legislature granted to municipalities the right to exercise the police power, R.S. 40:48-2, and the judicial branch of our government is enjoined to give laws concerning municipal corporations formed for local governments a liberal construction in their favor. Const. 1947, art. IV, sec. VII, par. 11.

The preamble reveals that the police power of the municipality is invoked. It is recognized that the municipality has the power to regulate the use and enjoyment of property to a reasonable extent and in a reasonable manner above and beyond the constitutional authority to zone. The question is whether this ordinance goes beyond the power thus granted.

The defendant borough, situated in the northeasterly section of Bergen County, is a rural community approximating two and one-half square miles in area. Its population, according to the 1950 census, is 826, an increase of a little over 200 since 1940. Municipal systems of sanitary sewers and storm water drains have not as yet been constructed. Much of the area is virgin territory. The ground in the borough is composed of three layers: (1) the top soil extending to a depth of 10 to 12 inches, called by the soil experts the A horizon; (2) the subsoil known as the B horizon, and (3) the parent material designated as the C horizon. Top soil is the surface of fertile land, the best of the soil, and its presence is necessary for the effective growth of plant life. It is estimated by those who have studied the subject that nature requires a thousand years to produce one inch of such soil. Useless and offensive weeds such as ...


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