[28 NJSuper Page 29] This is a suit in lieu of a prerogative writ to test the validity of an amendment to the zoning ordinance of the Borough of Dumont. The zoning ordinance of Dumont prohibits trade or business in any district zoned for residential use. Block 197 on the assessment map of the Borough of Dumont is in an area zoned for residential use, and Block 197 itself was originally zoned for residential use. The amendment to the zoning ordinance here under review changed Block 197 from a residential district to a business district. The zoning ordinance permits trade and commerce to be carried on in a business district.
Knickerbocker Road is a county highway running north and south through Cresskill and Demarest along the easterly edge of Dumont. The west side of Knickerbocker Road is the east boundary line of Dumont. Massachusetts Avenue commences in Demarest on the west side of Knickerbocker Road, and runs in a westerly direction into Haworth along the northerly edge of Dumont. The south side of Massachusetts Avenue is the north boundary line of Dumont. DeLong Avenue commences in Dumont on the west side of Knickerbocker Road, and runs in a westerly direction through Dumont. DeLong Avenue is one block south of Massachusetts Avenue and parallel thereto. Franklin Street lies one block west of Knickerbocker Road and is parallel thereto. Franklin Street intersects DeLong Avenue in Dumont, and intersects Massachusetts Avenue in Haworth.
The only property affected by the ordinance here under review, i.e. , Block 197, is bounded on the north by Massachusetts Avenue, on the east by Knickerbocker Road, on the south by DeLong Avenue, and on the west by Franklin Street. This block is in the northeast corner of Dumont. It is approximately 787 feet long on Knickerbocker Road, and 200 feet wide on Massachusetts Avenue.
Cresskill and part of Demarest lie along the easterly border of Dumont. The boundary line between Cresskill and Demarest intersects the easterly boundary line of Dumont at about the middle of Block 197 where it fronts on Knickerbocker Road. Haworth and part of Demarest lie along the northerly border of Dumont. The boundary line between Haworth and Demarest intersects the northerly boundary line of Dumont at about the middle of Block 197 where it fronts on Massachusetts Avenue. Hence, Block 197 is bounded on the north by the Boroughs of Haworth and Demarest, and on the east by the Boroughs of Cresskill and Demarest.
The plaintiffs are the Boroughs of Haworth, Cresskill, and Demarest, and several individual property owners. The plaintiffs Robert and June Austin own a one-family residence located in Demarest on the easterly side of Knickerbocker
Road, directly across the street from Block 197. The plaintiff Frank P. Ryer owns lot 20, Block 186, on the current assessment map of Cresskill. This property has a frontage of 75 feet on the easterly side of Knickerbocker Road, approximately 500 feet south of Block 197. The plaintiffs Robert and Helen Jaeger own lots 11 and 12, Block 157 on the current assessment map of Dumont. The plaintiffs Anthony and Ida Rausa own lot 31, Block 110, on the current assessment map of Dumont. The plaintiffs William and Marjorie Wendland own lots 28 to 32, inclusive, in the aforesaid Block 197. These five lots have a frontage of 85 feet on the easterly side of Franklin Street in Dumont, and a depth of 100 feet.
The Northern Railroad runs in a north and south direction through Cresskill and Demarest. The West Shore Railroad runs in a north and south direction through Dumont and Haworth. These two railroads and several bus lines provide convenient and rapid transportation to New York City, Jersey City, Newark, Hackensack and many other communities in the metropolitan area.
Cresskill is zoned almost exclusively for single-family residences. The property in Cresskill along Knickerbocker Road, opposite Block 197, is zoned for single-family residences, and is being used exclusively for that purpose. There are no multiple-family districts, and there are no industrial districts in Cresskill. A small section in the center of the borough, by the Northern Railroad Station, is the only area zoned for business use.
Demarest is zoned almost exclusively for single-family residences. The property in Demarest along Knickerbocker Road is zoned for single-family residences, and is being used exclusively for that purpose. A small area in the center of Demarest, by the Northern Railroad station, is the only business zone. Industry is entirely prohibited.
Haworth is zoned almost exclusively for single-family residences. The land along Massachusetts Avenue is zoned for residential purposes. It is all vacant land. Multiple-family
residences and industry are prohibited in Haworth. A small area in the center of the borough, by the West Shore Railroad station, is the only area zoned for business use.
To a very large extent, the property in the Borough of Dumont is limited and restricted to residential use by the borough's zoning ordinance. A few small strips along the West Shore Railroad right-of-way are zoned for industry. The northwest corner of the borough and several other small areas in different parts of the borough are zoned for business. The rest is zoned for residential use. The area in Dumont extending west and south from Block 197 for approximately one-half mile is zoned for residential use, except the southwest corner of DeLong Avenue and Knickerbocker Road. This corner property, consisting of a frontage of 80 feet on Knickerbocker Road and a depth of 200 feet on DeLong Avenue, was rezoned from residential to business use by an amendment to the zoning ordinance. In my opinion it is obviously "spot zoning" and illegal. The only other property actually being used for business anywhere within approximately one-half mile of Block 197 is the southeast corner of Grant Avenue and Knickerbocker Road in Cresskill, where there is a gasoline service station and a tavern; and on Grant Avenue, in Cresskill, about 400 feet east of Knickerbocker Road, where there is a construction storage yard. These are non-conforming uses in a residential zone, and are about one-third of a mile from Block 197.
In all the four boroughs there are between 6,000 and 7,000 dwelling units. Most of the dwellings are one-family residences. The new developments in Dumont, Haworth, Demarest, and Cresskill, within a half-mile of Block 197, consist of one-family residences.
The business district in Haworth is about 1.1 miles from Block 197. The business district in Demarest is less than a mile, about 0.86 of a mile, from the premises in question. The business district in Cresskill is about one mile away. The nearest business district in Dumont is about one-half mile from Block 197, and the main business district in Dumont is about three-quarters of a mile.
A valid zoning ordinance limits and restricts to specified districts land and buildings according to the nature and extent of their use. R.S. 40:55-30 et seq. , as amended L. 1948, c. 305. Such ordinances, therefore, materially affect the rights of an owner in the use of his property. Any amendment of a zoning ordinance which changes the limitations or restrictions on the use of property likewise affects the rights of the owner in its use. The repeal of any provision of a zoning ordinance which limits or restricts the use of property also affects the rights of the owner to the use thereof. Consequently, no proper consideration of the legality of the provisions of a zoning ordinance, or an amendment, or a repeal thereof, can be undertaken without full knowledge of the rights of a property owner. Therefore, an examination of those rights should be the first step in the consideration of the legality of the ordinance here under review.
The Declaration of Independence affirms that "liberty" is an unalienable right, and that government is instituted to secure this right, among other rights. Article I, paragraph 1, of New Jersey's Constitution of 1947 states that the right to acquire, and possess property is a natural and unalienable right.
In the case of Buchanan v. Warley , 245 U.S. 60, 38 S. Ct. 16, 18, 62 L. Ed. 149 (1917), the United States Supreme Court said:
"Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property."
The United States Supreme Court also asserted this principle of law in the case of Terrace v. Thompson , 263 U.S. 197, 44 S. Ct. 15, 68 L. Ed. 255 (1923). In the case of City of Knoxville v. Knoxville Water Co. , 212 U.S. 1, 29 S. Ct. 148, 154, 53 L. Ed. 371 (1908), the court observed:
"Our social system rests largely upon the sanctity of private property."
In the case of 2700 Irving Park Building Corp. v. City of Chicago , 395 Ill. 138, 69 N.E. 2 d 827, 832 (1946), the Supreme Court of Illinois said:
"The right of every owner of property to use it in his own way and for his own purposes existed before the adoption of the constitution, and is guaranteed by that instrument."
The Supreme Court of Illinois said in the case of State Bank & Trust Co. v. Village of Wilmette , 358 Ill. 311, 193 N.E. 131, 133, 96 A.L.R. 1327 (1934),
"The privilege of every citizen to use his property according to his own will is both a liberty and a property right. Liberty includes not only freedom from servitude and restraint, but also the right of every man to be free in the use of his powers and faculties to pursue such occupation or business as he may choose and to use his property in his own way and for his own purposes, subject only to the restraint necessary to secure the common welfare."
The case of Phipps v. City of Chicago , 339 Ill. 315, 171 N.E. 289 (Sup. Ct. 1930) enunciated the same doctrine.
In the case of Cowan v. City of Buffalo , 247 App. Div. 591, 288 N.Y.S. 239, 242 (App. Div. 1936), the court said:
"The right to use and enjoy one's property is safeguarded by both the Federal and State Constitutions, and any law which unjustly interferes therewith deprives the owner of its enjoyment, and is as much a violation of the fundamental law of ...