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Township of Pequannock v. De Wilde

Decided: October 2, 1952.

TOWNSHIP OF PEQUANNOCK, PLAINTIFF-RESPONDENT,
v.
GEORGE DE WILDE, DEFENDANT-APPELLANT



Freund, Stanton and Conlon. The opinion of the court was delivered by Freund, J.s.c.

Freund

George De Wilde was convicted by the Municipal Court of the Township of Pequannock and, on appeal, by the Morris County Court for violation of the local zoning ordinance in that he erected a smokestack 50 feet in height when the ordinance limited the height to 40 feet.

On this appeal, the sole issue is the validity of the zoning ordinance in restricting the height of smokestacks to 40 feet. The appellant argues that such a restriction is an arbitrary and capricious exercise of the power of the municipality to regulate the height of structures.

For 28 years the defendant and his father have been in the greenhouse business in a residential zone of the Township of Pequannock. In October 1950 the defendant obtained a building permit to erect an additional greenhouse. Although neither the application for the building permit nor the permit itself made any reference to a smokestack, the defendant nevertheless erected a smokestack 50 feet in height.

The Legislature has expressly empowered a municipality to regulate structures, and R.S. 40:55-30, as amended by chapter 305 of the Laws of 1948, provides: "The authority conferred by this article shall include the right to regulate and restrict the height * * * of buildings, and other structures. * * *" Pursuant to legislative authority, the

municipality adopted a zoning ordinance, section III of which reads as follows:

"In a Residence Zone no building or premises shall be used and no building shall be erected or altered which is arranged, intended or designed to be used except for one or more of the following uses:

5. Farming (except poultry farming and stock farming), truck gardening or nurseries, green house business where already established and/or on adjoining property now owned by the present operator, in which case maximum building area shall not apply, except front line setback, provided that smokestacks do not exceed 40 feet in height."

It is well settled that a municipality in the interests of the general welfare and to further the advancement of a community may restrict the use of property, particularly in residential areas, so long as the restrictions are reasonably designed and promotive of the interests of the public at large. Guaranty Construction Co. v. Bloomfield , 11 N.J. Misc. 613, 615 (Sup. Ct. 1933); Duffcon Concrete Products v. Borough of Cresskill , 1 N.J. 509 (1949); Point Pleasant Beach v. Point Pleasant Pavilion , 3 N.J. Super. 222 (App. Div. 1949); Lionshead Lake, Inc. v. Township of Wayne , 10 N.J. 165 (1952). In the recent Lionshead Lake case, Chief Justice Vanderbilt pointed out that recent constitutional and statutory changes in our law have rendered inapplicable the decision of the former Court of Errors and Appeals in Brookdale Homes, Inc. v. Johnson , 126 N.J.L. 516 (E. & A. 1941), and the reasoning of the dissenting opinion of Justice Heher has been adopted. The Chief Justice said:

"We are bound by these changes in our organic law and accordingly this court in Schmidt v. Board of Adjustment of the City of Newark , 9 N.J. 405 (1952) has held that so long as the zoning ordinance was reasonably designed, by whatever means, to further the advancement of a community as a social, economic and political unit, it is in the general welfare and therefore a proper exercise of the zoning power. The underlying question before us is whether in the light of these constitutional and legislative provisions the zoning

ordinance of the defendant township is arbitrary and unreasonable. That question, moreover, must be answered in the light of ...


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