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Mason v. Mayor and Council of Borough of Hillsdale

Decided: January 6, 1959.

ROBERT MASON, SIDNEY GLATTER, AND ALICE CLARKE, PLAINTIFFS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF HILLSDALE, DEFENDANT



On motion by defendant for summary judgment.

Schneider, J.c.c.

Schneider

A motion for summary judgment was brought by defendant to strike the complaint of the plaintiffs. Plaintiffs had filed an action in lieu of prerogative writs attacking a certain ordinance enacted by the Borough of Hillsdale in Bergen County, New Jersey, which ordinance provided for the enclosure of swimming pools in the borough.

The plaintiffs are residential property owners in the community, each having a swimming pool on the premises. The ordinance in question (No. 58-6) became effective on May 29, 1958. Plaintiffs contend that the ordinance is invalid and unconstitutional and asked that it be declared to be so and its enforcement enjoined.

The plaintiffs make three contentions: (1) That the municipality does not have the power to regulate private swimming pools; (2) that the requirements of the ordinance are vague, indefinite and improper and do not set

forth sufficient standards to guide a property owner in what his duty might be under the ordinance; (3) that the ordinance is unreasonable as it applies to these plaintiffs.

Plaintiffs made a motion for summary judgment which was denied. The matter came on for pretrial and since there were a number of legal questions involved, the court ordered defendant to move for summary judgment so that legal questions might be concluded, leaving only factual questions for trial, if a trial were found to be necessary.

The ordinance requires that swimming pools be enclosed. A swimming pool is defined as any body of water, artificially constructed in whole or in part, and more than 18 inches in depth at any point below ground level or area around the pool, and located out of doors within 250 feet of any abutting property or street line. The required fence had to be not less than four feet nor more than 10 feet in height, and so constructed as entirely to enclose the area on which the swimming pool is located and to bar all reasonable and normal access to the pool except through a substantial selfclosing gate or gates the same height as the fence, with facilities for locking the gates.

No person is to construct or maintain any pool without the erection of the fence. Thus, it applies to pools to be constructed and also existing pools. People with existing pools were given 60 days to conform. The gates were required to be locked when the pool was not in use.

One of the plaintiffs has a three-foot fence around his pool. Another has a pool 125 feet from the nearest street. He contends the fence would alter the appearance of his property. The third has evergreens over six feet high along the pool, and trees border the road. There is a 200-foot in depth wooded area to the rear of the pool.

(1) Municipalities do have authority to regulate swimming pools and may enact ordinances for that purpose. Plaintiffs contend this is a zoning ordinance. The court does not find any indication that this ordinance is a zoning regulation. It is an attempt to regulate ...


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