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Yanow v. Seven Oaks Park Inc.

Decided: January 26, 1953.

SAMUEL YANOW, RESHELA YANOW, HERBERT D. MYRTLE, GERTRUDE E. MYRTLE, ABRAHAM T. HOROWITZ, RUTH S. HOROWITZ, PLAINTIFFS,
v.
SEVEN OAKS PARK, INC., A NEW JERSEY CORPORATION, MAX MASIN, MORRIS TZESES, SEYMOUR MASIN, LEO TZESES AND MILTON ALPERT, DEFENDANTS, AND EASTERN CHRISTIAN INSTITUTE, A NEW JERSEY CORPORATION, INTERVENING-DEFENDANT-RESPONDENT, CITY OF ORANGE, CROSS-CLAIMANT-APPELLANT



On appeal from Superior Court, Chancery Division, whose opinion is reported in 18 N.J. Super. 411.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Burling, J.

Burling

[11 NJ Page 344] This civil action was instituted by one Samuel Yanow and others, residents of properties fronting upon Seven Oaks Road in the City of Orange, Essex County, New Jersey, against Seven Oaks Park, Inc., and others, for various measures of relief, including prayers for specific performance of alleged representations or agreements between the plaintiffs and the defendant Seven Oaks Park, Inc. The principal object of the suit appears to have been to prevent the consummation of a sale (agreement for which sale was entered into on November 1, 1950) by the defendants, or some of them, to Eastern Christian Institute (hereinafter referred to as Eastern), a New Jersey corporation, of premises consisting of a three-acre plot of ground improved by a three-story brick building, together with accessory buildings, situated on South Center Street in the City of Orange. The main structure, containing 23 rooms and 13 baths had been constructed for use as a residence. It was known locally as the "Colgate House." Eastern intervened in this action as a defendant. The plaintiffs filed an amended complaint invoking the protection of the municipal zoning ordinance,

and on the strength thereof as well as upon the other allegations of their complaint sought injunctive relief against the use Eastern was alleged to have proposed to make of the said Colgate House property.

Eastern had been incorporated in New Jersey in September 1946, as a non-profit institution for the purpose of posthigh school "specialized religious training" for the ministry and missionary work, without denominational affiliation. At the time of the trial of the cause, the school had removed from its former location (it had used the facilities of the Central Christian Church, East Orange) to the Colgate House and had there proceeded to instruct its students, nine of whom were boarded there. The ultimate plan was to accommodate at least 50 students. The school also had a teaching staff consisting of two full-time teachers and five part-time instructors.

The evidence in the record shows that the surrounding area is one of one-family homes, with the exception of an apartment house constructed "across the street" from the Colgate property, admitted by Eastern to have been constructed after a grant of a variance therefor. Eastern does not contest the assertion of the City of Orange on this appeal that this area constitutes "the best residential section of the city," which appears to have been Eastern's own characterization thereof and was contained in its own brochure, which was introduced in evidence. Eastern introduced no evidence to the contrary.

The defendants by cross-claim sought specific performance of the agreement of sale, hereinabove adverted to, by Eastern. The City of Orange (hereinafter referred to as the City) was permitted to intervene in the cause, by order of the Superior Court, Chancery Division, entered August 10, 1951, and by its answer and cross-claim, relying upon its zoning ordinance, sought a judgment restraining and enjoining Eastern and the other defendants "from using or permitting the use of the aforesaid Colgate House for any purpose other than that of a one-family residence." Eastern by answer

thereto asserted several alleged separate defenses against the City's cross-claim, including attacks upon the constitutionality of sections 2(a)(4) and 2(a)(9) of the City's zoning ordinance.

The ordinance in question was passed on May 11, 1922. The provisions thereof above adverted to are included in the following portion thereof:

"Sec. 2 (a) Within any Residence 'A' District, as indicated on the Building Zone Map, no building shall be erected and no building or premises shall be used for any business or industry permitted in Sections 5 and 6 of this ordinance, nor for other than one or more of the following specified purposes:

(1) A dwelling for one family or for one housekeeping unit only provided that nothing herein shall prevent the taking of roomers or boarders.

(2) The office or studio of a professional person residing on the premises, provided there is no display of goods or advertising.

(3) Municipal playgrounds, parks or recreation buildings.

(4) Public and Parochial Schools.

(5) Churches and other places of worship, parish houses, Sunday school buildings.

(6) Farms, truck gardens, nurseries or greenhouses, excepting those used primarily for the growing of vegetables, plants or flowers to be sold at wholesale and, provided that there is no display of products and no advertising and provided that there is no power plant and that any greenhouse heating plant is at least twenty feet distant from each side lot line and also from the rear lot line of a corner lot.

(7) Accessory uses, customary or incident to the above uses and located on the same lot with them. Except as provided above, 'accessory uses' shall not include any uses customarily carried on as a business or as an industry, nor any driveway or walk giving access thereto, nor any structure used as a billboard or advertising sign.

(8) A private garage, only on the same lot with the building to which it is accessory, in which no business, service or industry connected directly or indirectly with motor vehicles is carried on. No such garage shall provide storage for more than one motor vehicle for each 20 feet of frontage of the lot on one street only, nor for more than one vehicle for each 2500 square feet of lot area, nor for more than five motor vehicles in any case, of which not more than one vehicle may be a commercial vehicle of not more than one and one half tons weight or capacity. Space for two cars may be provided in any case. Space for not more than one non-commercial vehicle may be leased. Such private garage shall be everywhere distant at least 25 feet from each street line. The same regulation as for private garages shall apply also to private stables except that one horse

and one vehicle shall be considered to be the equivalent of one motor vehicle.

(9) Private schools, clubs, lodges, social community center and recreation buildings, are prohibited, unless the written consents of 80 per cent., by frontage, of the owners of all lots within 200 feet of the property in question be filed with the Building and Plumbing Inspector, and unless every application for the erection, enlargement or alteration of any such building shall be approved by the Board of Appeals."

Although our analysis of this case does not require resort thereto, it is noted in passing that the provision for private boarding contained in section 2(a)(1) of the zoning ordinance, supra, was deleted by an amendment to the zoning ordinance passed January 4, 1949.

The trial court inter alia found that the "delegation by the City of Orange of a legislative power vested in it without fixing standards for the exercise thereof is unlawful" and that the "ordinance vested an unlawful discrimination between a private and public or parochial school" and entered judgment in favor of the defendants as against the plaintiffs, in favor of the original defendants against Eastern (i.e., requiring Eastern specifically to perform its agreement to purchase the Colgate House), and against the intervening-defendant City, dismissing its cross-claim against Eastern for injunctive relief to enforce the provisions of the City's zoning ordinance. The City appealed from the latter portion of the judgment (no other party appealed) to the Superior Court, Appellate Division. Before hearing there certification was allowed upon our own motion.

The questions involved on this appeal call upon us to determine the constitutionality of the application of the Orange zoning ordinance, supra, to Eastern's property, the Colgate House. The question whether clause 2(a)(9) of the zoning ordinance is "invalid under the State and Federal Constitutions" because "the delegation therein of legislative power to adjacent landowners, coupled with a lack of standards for its ...


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