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Pierro v. Baxendale

Decided: November 21, 1955.

ALPHONSE PIERRO AND FRANK PIERRO, PLAINTIFFS-RESPONDENTS,
v.
WILLIAM H. BAXENDALE, BUILDING INSPECTOR OF THE BOROUGH OF PALISADES PARK, AND MAYOR AND COUNCIL OF THE BOROUGH OF PALISADES PARK, DEFENDANTS-APPELLANTS



For reversal -- Chief Justice Vanderbilt, and Justices Wachenfeld, Jacobs and Brennan. For affirmance -- Justices Heher, Oliphant and Burling. The opinion of the court was delivered by Jacobs, J. Heher, J. (dissenting). Oliphant and Burling, JJ., join in this opinion.

Jacobs

[20 NJ Page 18] In 1939 Palisades Park adopted a zoning ordinance which divided the borough into residential, business and industrial districts. District AA was generally

restricted to one- and two-family dwellings and District A to one- and two-family dwellings and apartment houses. Hotels and motels were not expressly permitted in Districts AA and A although "boarding and rooming houses" (and other limited uses not pertinent here) were expressly permitted. The ordinance defined a boarding house as "any dwelling in which more than six persons not related to the owner or occupant by blood or marriage are lodged and boarded for compensation"; it defined a rooming house as "any dwelling where furnished rooms are rented to more than six persons for compensation, provided however, the lodging of relatives, by blood or marriage, of the owner or occupant of such dwelling shall not come within these terms."

The plaintiffs are the owners of land located within residential District A. On May 19, 1954 they applied to the building inspector of the borough for a permit to erect a 27-unit motel on their land but the application was denied; no administrative appeal from the denial was taken by the plaintiffs nor did they ever seek a variance under N.J.S.A. 40:55-39. On May 25, 1954 the borough adopted a supplemental zoning ordinance which expressly prohibited the construction within Palisades Park of "motels, motor courts, motor lodges, motor hotels, tourist camps, tourist courts, and structures of a similar character intended for a similar use." On May 28, 1954 the plaintiffs filed a complaint in the Law Division seeking a judgment directing the issuance of a permit to them in accordance with their application to the building inspector and setting aside the supplemental ordinance. The defendants filed their answer to the complaint and on December 9, 1954 a pretrial order was duly entered.

On February 10, 1955 the matter came on for trial before the Law Division but no oral testimony was taken; instead, the parties in open court entered into a short stipulation on which the judgment ultimately entered must rest. The stipulation set forth that the Borough of Palisades Park is approximately a mile square and is located about a mile and a half south(west) of the George Washington Bridge; it is a residential community composed principally of one-family

homes and "is zoned percentagewise as follows: 80 percent for residential purposes, 9 percent for business purposes, 3 percent for light industry, and 8 percent for heavy industry, which area lies solely west of the Northern Railroad tracks"; there are no motels in Palisades Park but there are motels in the Borough of Fort Lee (which lies immediately to the north(east) thereof) and in other nearby communities; the plaintiffs' property is located on Temple Terrace in a residential area "and on the same block, or immediately adjacent to the property, there is a two-family house with considerable shrub area immediately adjacent to it," and "on the opposite side of Temple Terrace there is a large ranch type house presently being built"; "both sides of (nearby) Sunset Place have been built up with one-family residences, many of them within the last 4 or 5 years"; and "another large ranch type home is being built on East Edsal Boulevard near the property in question." In answer to an interrogatory submitted by the plaintiffs, the Borough of Palisades Park stated that it had issued 19 tavern licenses and 12 licenses for the sale of alcoholic beverages for off-premises consumption; apparently all of these establishments are in the business district.

After considering the arguments and briefs of counsel the trial judge expressed the view that "a motel is a rooming house" and that there is no "fair and reasonable discrimination between a motel as a rooming house and some other type of rooming house"; he therefore concluded that the supplementary ordinance was invalid and that the plaintiffs were entitled to a building permit for the erection of a motel on their property in residential District A, provided its manner of construction was in conformity with the borough's building requirements; he entered final judgment to that effect and the defendants duly served and filed their notice of appeal therefrom to the Appellate Division. We certified under R.R. 1:10-1(a).

The plaintiffs do not attack the validity of the 1939 ordinance which placed their property in a residential zone. And in the absence of an affirmative showing of unreasonableness

they admittedly could not attack the right of the borough to exclude all private business operations, including boarding and rooming houses, hotels, motels and tourist camps, from the residential zones within the borough. Cf. Collins v. Board of Adjustment of Margate City, 3 N.J. 200, 208 (1949); Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 388, 47 S. Ct. 114, 71 L. Ed. 303, 311 (1926). They do, however, deny the borough's right to permit boarding and rooming houses in residential zones and at the same time exclude motels therefrom; as we view the terms of the 1939 ordinance the borough contemplated the exclusion of hotels, motels and similar businesses from the residential zones without, nevertheless, curbing the right of dwelling house owners or occupants to use their premises for boarding and rooming house purposes. If this classification by the borough has no reasonable basis then it must fall as the plaintiffs contend; if, on the other hand, it has reasonable basis then it may be permitted to stand and serve to exclude the operation of a motel in a residential zone as proposed by the plaintiffs. See Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 353 (1953); Zullo v. Board of Health of Woodbridge Tp., 9 N.J. 431, 439 (1952); Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405, 418 (1952). Cf. Euclid, Ohio v. Ambler Realty Co., supra; United States v. Burnison, 339 U.S. 87, 95, 70 S. Ct. 503, 94 L. Ed. 675, 682 (1950); Inhabitants of York Harbor Village Corp. v. Libby, 126 Me. 537, 140 A. 382 (1928). As Chief Justice Vanderbilt aptly remarked for the entire court in the Zullo case, legislative bodies may make such classifications as they deem necessary and as long as their classifications are based upon reasonable grounds "so as not to be arbitrary or capricious" they will not be upset by the courts.

In Yanow v. Seven Oaks Park, Inc., supra, we recently upheld a zoning ordinance which permitted public and parochial elementary and high schools, but prohibited colleges and other schools of higher learning, in residential areas. In the course of his opinion, Justice Burling set forth grounds for differentiating schools for the education of community

children from institutions of higher learning and quoted approvingly from the Euclid case where Justice Sutherland pointedly remarked that "if the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control." See Portage Township v. Full Salvation Union, 318 Mich. 693, 29 N.W. 2 d 297 (1947); State ex rel. Wisconsin Lutheran High School Conference v. Sinar, 267 Wis. 91, 65 N.W. 2 d 43 (1954). In 420 Broad Ave. Corp. v. Borough of Palisades Park, 137 N.J.L. 527 (Sup. Ct. 1948), the Borough of Palisades Park had amended its zoning ordinance so as to prohibit the use of premises in business districts for the sale of used cars. The former Supreme Court, after pointing out that the amendment was being attacked without any affirmative proof to overcome the settled presumption as to its validity, declined to upset it, recognizing that the business of selling used cars may properly be "distinguished from the selling of new cars," and holding that the classification by the borough was not "unreasonable, arbitrary or capricious." In Ring v. Mayor and Council of Borough of North Arlington, 136 N.J.L. 494, 499 (Sup. Ct. 1948), Justice Heher similarly remarked that the classification between new and used car businesses was not "vicious on its face." Cf. Piaget-Del Corp. v. Kulik, 133 N.J.L. 485, 486 (Sup. Ct. 1945).

In State ex rel. Howard v. Village of Roseville, 70 N.W. 2 d 404, 406 (Minn. Sup. Ct. 1955), the court sustained an ordinance which prohibited trailer park usage in a residential zone "except to the extent maintained at the time of the adoption of the ordinance"; in his opinion for the Minnesota Supreme Court, Justice Gallagher said:

"Insofar as zoning ordinances are concerned, it has frequently been held that what best furthers public welfare is a matter primarily for determination of the legislative body concerned, Kiges v. City of St. Paul, 240 Minn. 522, 62 N.W. 2 d 363; State ex rel. Beery v. Houghton, supra [164 Minn. 146, 204 N.W. 569, 54 A.L.R. 1012], Dundee Realty Co. v. City of Omaha, 144 Neb. 448, 13 N.W. 2 d 634, and under this principle ordinances which designate residential districts and exclude trailer parks and like enterprises

therefrom have often been upheld as valid exercises of the police power. E.g. Fishman v. Tupps, 127 Colo. 463, 257 P. 2 d 579; Huff v. City of Des Moines, 244 Iowa 89, 56 N.W. 2 d 54; Midgarden v. City of Grand Forks, N.D., 54 N.W. 2 d 659; see Annotation, 22 A.L.R. 2 d 793.

Even where the reasonableness of a zoning ordinance is debatable, or where there are conflicting opinions as to the desirability of the restrictions it imposes or the suitability for residential purposes of property so designated thereby, it is not the function of the courts to interfere with the legislative discretion on such issues."

In Von Der Heide v. Zoning Board of Appeals, 204 Misc. 746, 123 N.Y.S. 2 d 726 (Sup. Ct. 1953), affirmed 282 App. Div. 1076, 126 N.Y.S. 2 d 852 (1953) leave to appeal denied 306 N.Y. 985, 119 N.E. 2 d 610 (Ct. App. 1954), the plaintiff applied for a building permit to erect a motel in a business district in the Town of Somers, Westchester County. His application was denied and he sought to upset the denial on the ground that he came within a provision of the ordinance which permitted the operation of a "boarding house or inn" as a proper business use. Justice Eager found that the proposed motel was not embraced within the term boarding house, particularly since the ordinance provided that no boarding house shall be operated unless "the operator thereof shall be the owner of the premises and reside therein"; he also found that the proposed motel was not an inn, saying:

"The court has come to the conclusion that the petitioner's motel is not an 'inn' within the ordinary meaning of such word. True, the word 'motel' is a coined and modern word derived from, and an abbreviation of the words 'motorists' hotel', i.e., 'motel' (Webster's New Collegiate Dictionary, 1949; Funk & Wagnall's New Standard Dictionary, 1951), and the word 'inn' in present day use is synonymous with the word 'hotel'. See, Dixon v. Robbins, 246 N.Y. 169, 172, 158 N.E. 63, 53 A.L.R. 986. But a motel is commonly understood to be an establishment essentially different from an inn or hotel in design, purpose and use. From early times, an inn or hotel was 'a house of entertainment for travelers', or 'a house where a traveler is furnished, as a regular matter of business, with food and lodging while on his journey.' Waitt Const. Co. v. Chase, 197 App. Div. 327, 188 N.Y.S. 589, 592. An inn or hotel more elaborately defined, may ...


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