Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
The plaintiff attacks the validity of an amendment to a municipal ordinance which purports to regulate and license restaurants, lunchrooms and other places where food is sold or offered for sale and which amendment provides as follows:
"In addition to the other regulations, no restaurant, lunch room or other place where food for human consumption is sold or offered for sale for consumption on the premises, shall be carried on where the proposed licensed premises has any window, door, vent, ventilating system or other opening within 15 feet of the property line of any other property, except a public street."
The complaint seeks to declare the amendment void as being unconstitutional since it deprives plaintiff of her property without due process of law, is arbitrary, unreasonable, and capricious.
The plaintiff "for a long period of time" has operated a lunchroom and restaurant business specializing in pizza pies on the ground floor of her premises at 268 Huyler Street, in South Hackensack, which premises conform with the local zoning ordinance. The residential premises next door are occupied by Fred Rossi who testified that the side of plaintiff's building on the ground floor facing his dwelling has five windows, of which three are in the kitchen, one in the men's room and one in the women's room. From his testimony, his building is three feet from the line dividing the two properties and from the plaintiff's window to his window it is 6 feet, 10 inches. Rossi testified that all of the windows are "open day and night" until midnight and sometimes until 2:00 in the morning. He further testified there are three bedrooms in his home on the side that faces the plaintiff's windows and he complains of the noise of pots, pans, dishes and people talking, together with the odors emanating from the plaintiff's restaurant kitchen and toilets. He had complained several times to the police of his inability to sleep and testified that he gets up at 5:30 in the morning to go to his work. It may be inferred that these complaints were one of the reasons that the defendant municipality adopted the amendment to its ordinance which is now under attack.
By virtue of other local ordinances, the plaintiff is required to maintain an open rear yard. The maximum effect of the licensing ordinance as it concerns the plaintiff is to require her to close, and keep closed, the five windows directly opposite the Rossi home and, if the odors from the plaintiff's premises are harmful or obnoxious, to provide a means for their escape through windows or other apertures leading to the street or to the rear yard. There is no evidence as to the distance from the plaintiff's building to the other side property line. If this is more than 15 feet, openings could be made in that wall also, under the amendment.
The plaintiff failed to apply for a license or otherwise comply with the amended ordinance, but instead instituted
the present proceeding claiming the amendment to be void. The defendant's answer states that the amended ordinance is a proper regulation in the public welfare in that restaurants are permitted in business areas under the zoning and fire prevention ordinances and health code and that neighbors are entitled to protection from nuisances resulting from open vents in too close proximity to adjoining property.
The amended ordinance was held to be void by the trial judge who stated that the ordinance "is totally unreasonable" as it "goes beyond the power granted by the legislature and beyond the police power granted or inherent in a municipality" and "It is too broad and discriminatory * * *." The present appeal is from the judgment which held invalid that part of the amendment here being challenged.
The defendant municipality bases its argument upon the grounds that the ordinance amendment was valid under the police power as designed to serve the public safety, welfare and other public interests, set up a proper classification, and was not ultra vires or discriminatory in its application to the plaintiff.
The authority of a municipality to adopt an ordinance carries with it the implication that such ordinance must be reasonable. There is a presumption in favor of its reasonableness and the burden of proof is upon the party challenging the ordinance to establish that it has the characteristic of being unreasonable. State v. Mundet Cork Corp. , 8 N.J. 359, 370, 371 (1952), certiorari denied, 344 U.S. 819, 73 S. Ct. 14, 97 L. Ed. 637; Guill v. Mayor and Council of the City of Hoboken , 21 N.J. 574, 581 (1956); Trenton Horse R.R. Co. v. Inhabitants of City of Trenton , 53 N.J.L. 132, 140 (Sup. Ct. 1890); Raffetto v. Mott , 60 N.J.L. 413, 415 (Sup. Ct. 1897); McGonnell v. Board of Com'rs of Orange , 98 N.J.L. 642, 647 (Sup. Ct. 1923); Peterson v. Mayor and ...