Conford, Freund and Haneman. The opinion of the court was delivered by Freund, J.A.D.
This is an appeal by the defendant from a final judgment of the Law Division "declaring ordinances 3-57-1 and 1-58-1 of the Borough of Rockleigh arbitrary, discriminatory and having no relation to the general welfare of the community" and directing that a building permit be issued to the plaintiffs for the construction of a dwelling in accordance with plans approved by the local planning board. The ordinances are amendments to the local "building zone" ordinance, which apparently includes a building code and zoning use regulation.
The Borough of Rockleigh is located in the northeast corner of Bergen County, New Jersey, adjacent to the New York state line. It is about one square mile in area, and has 37 homes and a population of about 150 people. In the last ten years only three houses have been constructed in the borough. It was testified that approximately 80% of the houses in Rockleigh are over 50 years old. We requested and, with the consent of the respective attorneys, have received a map showing the three principal roads passing through the borough and the location and architectural style of the various buildings. The map, together with its legend, discloses which buildings have been constructed within the last three and seven years, respectively.
The map shows that, all told, Rockleigh has about 60 structures and that, of these, at least 11 are modern-style buildings constructed in the last three years.
Rockleigh's zoning ordinance creates three zones: "A" residential (two-acre minimum), "B" field and country club area, and "C" light industry.
Plaintiffs own property on Piermont Road in the "A" zone. On February 10, 1957 plaintiffs submitted plans to the chairman of the building committee for a proposed modern two-story dwelling with a partial flat roof. After suggested changes were made, the plans were approved by the planning board on April 30, 1957. On April 8, 1957 the zoning ordinance amendment in question, 3-57-1, was adopted by the local legislative body to be effective April 18, 1957. Subsequently, on May 20, 1957 when the plans were submitted to the mayor and council, they were rejected, apparently on the basis of amendment 3-57-1. Plaintiffs thereupon filed the present complaint.
The pertinent part of the amended ordinance reads as follows:
Section 7(g): Architectural Design -- The architectural design of all new houses and other buildings in the Borough of Rockleigh, or old houses or buildings that may be renovated or reconstructed, shall be subject to the approval of the Planning Board and of the Mayor and Council of the Borough of Rockleigh. Such design may be of early American, or of other architectural style conforming with the existing residential architecture and with the rural surroundings in the Borough, and acceptable to the Planning Board and to the Mayor and Council of the Borough of Rockleigh."
In February 1958 the borough adopted another amendment to the building zone ordinance, known as 1-58-1 which provides standards for roofs. It in effect prohibits a modern flat roof such as that on plaintiffs' proposed house.
Within 400 feet of plaintiffs' property are a gas station in a modern building, a delicatessen in a conventional home converted into a store, and an industrial building with a flat roof. ...