For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Proctor, J.
[29 NJ Page 600] The plaintiffs are 15 property owners in the "C" Commercial District of the defendant, Township of River Vale. They instituted an action to set aside an amendment to the zoning ordinance which increased the front setback requirement from 40 to 60 feet from the
center line of all streets in the district. The trial court held the amendment invalid, and from the judgment entered thereon the defendant appealed to the Appellate Division. We certified the case on our own motion before it was argued in that court.
River Vale is a residential community in the northern section of Bergen County. It is partially bordered on the north by New York State. The township is about 3 1/2 miles long from north to south and its width varies from about 1 to 1 1/2 miles. Its population has increased from 1,600 in 1950 to about 4,700 in 1958.
The original zoning ordinance was adopted in 1944 and it was generally amended in 1954. The ordinance as then amended established the "C" Commercial District. This is the only business district in the township and is located in its southerly section. The center of this district is at the intersection of Westwood Avenue and Rivervale Road, and the district extends along these thoroughfares for about 800 feet in each direction. It has a depth of 200 feet on both sides of said roads. The total area is 18 acres divided into 45 parcels of land. There are 35 buildings in the district, six of which are commercial establishments. The others are dwellings. The plaintiffs' properties are all located on either Westwood Avenue or Rivervale Road.
Rivervale Road and Westwood Avenue are both county roads. Rivervale Road is the only north-south route which links this part of Bergen County with New York State, with the exception of Kinderkamack Road two miles to the west. Traffic on Rivervale Road has increased as a result of the growth of the township and the county, and the establishment of new industry nearby in New York State. The dedicated right of way of Rivervale Road through the business district varies from 37.12 feet to 45.62 feet. (It is fair to say that the average dedicated width is about 40 feet.) However, its paved width is only 18 to 20 feet.
The other county road, Westwood Avenue, is a main connecting route running east and west through the township
between the Boroughs of Westwood and Old Tappan. Its dedicated right of way through the business district is 80 feet in width. However, only 18 to 20 feet of the right of way is paved.
On May 2, 1957 the governing body of the township adopted an amendment to the existing zoning ordinance which increased the building setback requirement from the center line on all streets in the "C" district from 40 to 60 feet. In the district a minimum rear yard depth of 50 feet is required. The plaintiffs in this action challenge this amendment on the grounds that it is unreasonable, arbitrary and capricious, and that it deprives them of their properties without full compensation and due process of law. In answer the defendant township asserts that the amendment is a valid exercise of the police power and not confiscatory.
Five of the plaintiffs testified that the effect of the amendment was to depreciate greatly the values of their properties. In several instances it was shown that the 60-foot setback, together with the 50-foot rear yard requirement, would leave the owner with a space in which it would be virtually impossible to erect a building. One of the plaintiffs testified that the 60-foot setback requirement will force him to locate a planned building 20 feet further back from the street than a building which has recently been erected on an adjacent lot, and that as a consequence his "stores will not be visible coming down Westwood Avenue." It was stipulated that the remaining plaintiffs "would have, if they had taken the witness stand, testified substantially as the other witnesses have testified, the difference being the different sizes and dimensions of the lots only. In all other respects, their reasons for objecting to this ordinance will be the same as those who have testified."
The impact of the amendatory ordinance was summarized by Gerald Dederick, a real estate expert, who testified on behalf of the plaintiffs as follows:
"[T]he operation of the new zoning ordinance sets up a situation -- I mean the new setback ordinance -- where we have 2 business streets, same area, at an intersection, one of which permits construction within 20 feet of the line of the street, and the other one causing a setback of approximately 40 feet from the line of the street. The operation of this 60 foot setback not only places some 15 additional properties in a non-conforming use due to the setback, but also practically confiscates the usage for business purposes of 7 properties.
[T]hat the operation or the insistence upon a 50 foot rear yard reservation, plus a 40 foot setback [from the property line on the street] reservation on Rivervale Road, practically eliminates for any purpose, particularly commercial ...