On appeal from the Law Division of the Superior Court, certification to this court granted on the appellant's petition.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Burling, Jacobs and Brennan. For affirmance -- Justices Oliphant and Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J. Jacobs, J. (concurring). Oliphant, J. (dissenting). I am authorized to say that Mr. Justice Wachenfeld concurs in this opinion.
The plaintiff, the owner and developer of a large tract of land in the defendant township, commenced this action in lieu of a prerogative writ challenging the validity of the defendant's zoning ordinance in fixing the minimum size of dwellings and in placing certain of its properties in a residential district. On the plaintiff's motion the trial court entered summary judgment in its favor on the first count, setting aside the provisions of the ordinance fixing the minimum size of dwellings, Lionshead Lake, Inc., v. Wayne Tp., 8 N.J. Super. 468 (Law Div. 1950). On appeal this judgment was reversed by the Appellate Division of the Superior Court because of the existence of a factual question and the case was remanded for trial, Lionshead Lake, Inc., v. Wayne Tp., 9 N.J. Super. 83 (App. Div. 1950).
The Township of Wayne is the most extensive municipality in Passaic County. It covers 25.34 square miles in comparison with the 23.57 square miles of Newark. It has a population of 11,815 in comparison with Newark's 437,857. Only 12% of the total area of the township has been built up. Included within its borders are several sizable lakes (the one located within the plaintiff's development, e.g., having an area of about 145 acres) and as a result a considerable number of its residences have been built for summer occupancy only. Although a political entity it is in fact a composite of about a dozen widely scattered residential communities, varying from developments like the plaintiff's
where the average home costs less than $10,000, to more expensive sections where the homes cost from $35,000 to $75,000. It has but little business or industry.
On July 12, 1949, four years after the plaintiff had commenced the development of its Lionshead Lake properties and after over a hundred houses had been constructed there, the defendant adopted a revised zoning ordinance dividing the entire township into four districts; residence districts A and B, a business district and an industrial district, the last two comprising but a very small proportion of the township's total area. In section 3 of the ordinance pertaining to residence A districts it was provided that:
"(d) Minimum Size of Dwellings:
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."
These minimum size requirements for dwellings were made applicable to residence B districts by section 4 (d) of the ordinance, to business districts by section 5 (c), and to industrial districts by section 6 (b) 1, the result being that the same minimum size requirements for dwellings prevail throughout the entire township.
Within the entire township only about 70% of all the existing dwellings meet the minimum requirements of the ordinance; in some sections of the township as few as 20% of the existing dwellings comply with the ordinance requirements, in others (among them the plaintiff's Lionshead Lake development) only about 50% are above the prescribed minimum, while in other areas the percentage of compliance is far greater, reaching 100% in some of the more exclusive sections. The low percentage of compliance in certain areas
is not particularly significant, however, for the reason that the township is as yet substantially undeveloped. Compliance with the requirements of the ordinance in the future will undoubtedly result in the nonconforming houses comprising but a small minority even in those areas where they are now in the majority. There was testimony to the effect that to build a house for year-round occupancy having the minimum 768 square feet of living space would cost from $10,000 to $12,000, if mass produced, and that only about 30% of the population were financially able to afford such homes. The plaintiff's witness who so testified, a builder and developer, was hardly qualified, however, to express an opinion as to the financial ability of present and potential residents of the township and his opinion as to construction costs was considerably out of line with that of the defendant's expert who testified that homes complying with the ordinance could be and were being built at a cost of $8,500 to $9,200 if for year-round occupancy and $7,500 to $8,200 if for seasonal use only.
To meet the plaintiff's attack on the reasonableness of the ordinance the defendant produced a recognized public health expert, who testified that the living-floor space in a dwelling had a direct relation to the mental and emotional health of its occupants and that he had developed scientific standards for different size families: 400 square feet for one person 750 square feet for two persons, 1,000 square feet for three persons, 1,150 square feet for four persons, 1,400 square feet for five persons and 1,550 square feet for six persons. These the witness considered as desirable goals rather than legal standards. He conceded that the housing standards prescribed by the agencies of the Federal Government are below those written into the ordinance, as are those of the New Jersey Code of Minimum Construction Requirements for One and Two Family Dwellings, prepared by the Department of Economic Development, Division of Planning and Engineering (1946), which, however, does not have the force of law but is merely advisory.
After considering this and other evidence the trial court concluded that the minimum size requirements of the ordinance were not reasonably related to the public health, were arbitrary and unreasonable, and not within the police powers of the defendant. Accordingly judgment was entered on the first count of the complaint in favor of the plaintiff setting aside the minimum size of dwelling requirements with respect to the residence A and residence B districts in which the plaintiff's property is located. The plaintiff failed to introduce any proof in support of the second count of its complaint in which it objected to the placing of its property in a residential zone. The court therefore granted the defendant's motion for a dismissal thereof with prejudice, but subsequently declined to enter formal judgment to that effect. On the petition of the defendant we granted certification to review the judgment of the trial court with respect to the first count and its refusal to enter judgment with respect to the second count.
The zoning powers of municipalities have been extended by Art. IV, Sec. VI, par. 2 of the Constitution of 1947:
"The Legislature may enact general laws under which municipalities, other than counties, may adopt zoning ordinances limiting and restricting to specified districts and regulating 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 shall be deemed to be within the police power of the State. Such laws shall be subject to repeal or alteration by the Legislature."
The zoning statutes then in effect were amended by chapter 305 of the Laws of 1948 to give effect to the expansion of the zoning power contemplated by the addition of the italicized words to the corresponding provision of the 1844 Constitution (Art. IV, Sec. VI, par. 5). Moreover, by Art. IV, Sec. VII, par 11 of the Constitution of 1947, which had no counterpart in the 1844 Constitution, we are required to construe the constitutional and statutory provisions pertaining to zoning liberally in favor of a municipality:
"The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly ...