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Vickers v. Township Committee of Gloucester Township

Decided: May 7, 1962.

HAROLD E. VICKERS, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP COMMITTEE OF GLOUCESTER TOWNSHIP, ET AL., DEFENDANTS-APPELLANTS



For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor and Haneman. For affirmance -- Justices Hall and Schettino. The opinion of the court was delivered by Proctor, J. Hall, J. (dissenting). Justice Schettino joins in this opinion.

Proctor

In this proceeding plaintiff Harold E. Vickers challenges the validity of an amendment to the zoning ordinance of the defendant Gloucester Township. This amendment prohibits "Keeping, locating, establishing, maintaining or operating a trailer camp, trailer park * * *" in its industrial district.*fn1 After hearings, the Superior Court, Law Division, sustained the validity of the amendment. On plaintiff's appeal the Appellate Division reversed. 68 N.J. Super. 263 (1961). The township appeals to this court under R.R. 1:2-1(a).

On July 1, 1957 the township adopted a comprehensive zoning ordinance establishing Residence Districts "A," "B," "C," "D," a Business District, an Agricultural District and

an Industrial District. The ordinance enumerated the uses permitted within all residence, business and agricultural districts, not mentioning trailer camps. The section regulating uses within the industrial district was drafted in different form; it permitted lands to be used and buildings to be erected for any lawful purpose with the exception of 41 specified uses. Trailer camps were not among the barred uses. By the terms of the ordinance dwellings which conformed to the requirements of the "A" residence district were permitted in the industrial district, provided prior approval of the Board of Adjustment was obtained. "A" residence district houses were required to be "One-family detached dwellings" located on a lot not less than 75 by 125 feet with at least 800 square feet of usable first floor area.

On September 3, 1957 the township adopted an ordinance entitled "An Ordinance to Regulate and Control Trailers, Trailer Coaches, Camp Cars and Trailer Camps in the Township of Gloucester." (Trailer Ordinance.) The effect of this ordinance and the zoning ordinance was to repeal a 1947 trailer ordinance barring trailer camps in the entire township and to ban such camps in the residence, business and agricultural districts, but permit them in the industrial district. At present there are no trailer camps in the township.

In April 1959 this court decided Napierkowski v. Township of Gloucester, 29 N.J. 481, which concerned the validity of the zoning ordinance as it applied to trailers in residential districts. We held "the provisions of the zoning ordinance prohibiting the location of trailers in residence districts * * * bears a reasonable relationship to the purposes of zoning as outlined in R.S. 40:55-32, and should be upheld." Id., at p. 496. We expressly left open the question of whether such uses could be completely excluded from the township. Id., at p. 497.

On August 26, 1959 Vickers applied to the township for a permit to operate a trailer camp upon his ten acres of

industrially zoned land which he had purchased in November 1957. While this application was pending, he acquired ten additional acres of land across the road from his prior holdings but still within the industrial district. The Township Committee denied his application in a letter dated December 8, 1959. As a result, Vickers instituted an action in lieu of prerogative writ on December 30, 1959, wherein he alleged he had complied with the Trailer Ordinance requirements and sought a judgment compelling the township to grant him permission to operate his proposed trailer camp. In their answer, the defendants stated that plaintiff's application was denied because his plans did not meet the requisite health standards and that the granting of the permit would be in violation of the zoning ordinance, subdivision ordinance and building code.

Much of the testimony introduced by the plaintiff at the trial on March 17, 1960, concerned his compliance with the requirements of the State Department of Health. Plaintiff also introduced evidence as to the characteristics of the township, particularly the area surrounding his property. This area is almost entirely in the industrial district (an "A" residential district is not far from Vickers' lands) and is for the most part undeveloped. Several buildings ranging from dilapidated shacks to modest homes are situated in the immediate vicinity of plaintiff's property. There are no residential developments or industrial plants in this area, nor are there any between plaintiff's land and the Freeway which runs through the township and is about two miles west of the property. An expert called by plaintiff testified that plaintiff's land could be appropriately used as a trailer camp site and that such use would not have an adverse economic effect upon the neighborhood.

Apparently realizing during the course of the trial that his application and plans did not meet the required standards of the State Department of Health, plaintiff moved for an opportunity to amend his application and plans as submitted. The court granted plaintiff's motion and further

allowed the township to "take such administrative action and review what action they may be desirous of taking in the interim time, which means that the Court will hold this issue in abeyance until such time as those amendatory actions are taken on the part of both parties." The trial was adjourned for an unspecified period.

The plaintiff's amended plans were submitted to the Township Committee at a meeting held on April 1, 1960. At that meeting the Mayor announced that a "proposed amendment to the Zoning Ordinance to exclude trailer camps is being submitted to the Planning Board for its consideration and comment at its next meeting, to be held April 5, 1960." After this announcement the Committee meeting was adjourned until April 5, 1960, "to take up any action regarding such proposed zoning ordinance amendment, and any other things that may be considered at the adjourned meeting." At the Township Committee meeting held April 5, 1960, the amending ordinance barring trailer camps from the industrial district and an ordinance repealing the Trailer Ordinance were read for the first time. The Township Planning Board met and approved the amending ordinance on the same night. In a letter formally notifying the Township Committee of this action, the Planning Board stated:

"The Board believes that trailer camps do not contribute anything to the general appearance of the local scenery and do not enhance the use or value of the local real estate and, in fact, do have a directly opposite effect, that the areas where they may exist are prejudiced thereby, that real estate values instead of being preserved or enhanced, would be depreciated, that the establishment of such camps would retard and, perhaps, choke the development of real estate for the area. To permit trailer camps and camp sites would not be in the interest of the general welfare of the community. The Board, therefore, registers its approval of the amendment * * *"

This letter was read to the Township Committee at its next meeting which was held on April 22, 1960. At that meeting the zoning ordinance and the ordinance repealing the

Trailer Ordinance were read for the second time and adopted by the Township Committee. The minutes disclose the following:

"Mayor Yost, Mr. Harrison and Mr. McCann in reply to statements and questions raised by the members of the public, stated, in substance, that the Township Committee in presenting the ordinance to amend the zoning ordinance was taking into consideration the over all planning for the township, present and future, and that the purpose of the amendment was to protect property values, both present and future, which might be adversely affected by a trailer camp, because a trailer camp is not attractive in appearance and that consideration must be given to the effect that such appearance would have on the development of the area in particular and the township in general.

Mayor Yost further pointed out that the township was in the heart of the Delaware Valley expansion that is taking place and that the township is growing fast and planning is necessary to cope with such growth."

Since the result of the ordinances was to prohibit trailer camps throughout the township, plaintiff on May 5, 1960, filed a second complaint in lieu of prerogative writ demanding a judgment declaring the ordinances invalid and inapplicable to the use of his property as a trailer camp. In its answer the township contended it had the power to enact the ordinances under its zoning powers and general police powers.

The second action came to trial on June 20, 1960, before the same judge who heard the first case, and the actions were consolidated. The parties stipulated that plaintiff's amended plans satisfied the prerequisite health standards applicable to trailer camps, thus leaving as the primary question whether the township had the power to adopt the amendment prohibiting trailer camps from its industrial district, which in effect barred them from the entire township. Also in issue was the legal propriety of the procedure followed in adopting the amendment, the plaintiff contending the Planning Board did not have the opportunity to properly consider the amendment as required by N.J.S.A. 40:55-35.

The testimony, zoning map and photographs submitted at the trial showed that the township is in the main a rural community of about 23 square miles in Camden County. However, the nature of the township is rapidly changing, it being in the throes of expansion. The population has grown from 7,950 in 1950 to about 17,500 in 1960, and the number of houses has increased from 2,694 in 1955 to 4,113 as of September 1959. The bulk of this expansion is concentrated in the northern and western sections. The southern section, where plaintiff's lands are situated, includes several residential districts and a business district, but is for the most part relatively undeveloped. The township's sanitary land-fill area, where non-garbage refuse is disposed and promptly covered by earth, is located about 100 yards from plaintiff's land. Although most of the southern section is in the industrial district, one-family houses can be constructed in that district if the Board of Adjustment gives permission. In fact, home developers have purchased 500 acres within the industrial district and adjacent to plaintiff's property. Mayor Yost and Mr. Moffa, Chairman of the Planning Board, stated the township was continually considering changes in the existing zones in order to benefit the township. The record and zoning map indicate that certain areas which had been previously zoned residential, have recently been reclassified industrial. There was also testimony that the township, in an effort to eliminate blighted structures, had on February 8, 1960, appointed a Public Officer who is actively engaged in a program to rid the township of properties which are in "bad condition," including those located in the vicinity of plaintiff's land.

Mayor Yost testified that many factors motivated the township to prohibit trailers. He said:

"The Committee took many things into consideration; future over all planning of our Township; the acquisition of 500 acres of development ground bought by developers, adjacent to Mr. Vickers' property, also taking in connection with the Freeway, the other

sections of our Township are fairly well built up and the development is working further south.

We feel that the trailers, as a general run, are unsightly, and couldn't see with the present growth, also with the view in mind of future growth of planning where trailers would add to it."

The trial court, after noting the expanding nature of the community, held that the challenged ordinances were valid because "this is a municipality where prohibition of trailer camps can be legislated," and it further held the adoption of the amendment accorded with the statutory procedure. The Appellate Division reversed, holding "the amendment of the zoning ordinance of April 22, 1960 must be set aside as an unreasonable and arbitrary exercise of the zoning power." It said, at p. 270:

"The entire picture presented very definitely gives the impression that the planned future of the township, as reflected by the high proportion industrial districts bear to the whole, does not contemplate that the township will become what is commonly called a 'residential town.' On the contrary it appears that the zoning power has been used in the hope of attracting industry.

Surely, in this vast rural area, there must be some portion in which the operation of trailer parks would be compatible with the scheme of zoning the township has seen fit to select, and yet would not adversely affect existing or future uses of property located anywhere in the township, and however zoned."

The Appellate Division further held the township was free to repeal its Trailer Ordinance and "its action in that regard will not be disturbed." In view of its disposition of the case, the Appellate Division found it unnecessary to pass upon the alleged procedural irregularity.

The parties agree the only issues on this appeal are: (1) In the circumstances, could the township through its zoning power totally exclude trailer camps from the municipality? and, (2) Were the procedural requirements of N.J.S.A. 40:55-35 met in the adoption of the zoning ordinance amendment?

As to the first issue, the township contends the zoning ordinance as amended represents a valid exercise of the municipality's power to "develop itself as an orderly and well integrated community," and that trailer camps with their accompanying disadvantages can only interfere with its planned growth. The plaintiff argues the township, although it can regulate the operation of trailer camps, cannot absolutely prohibit them, that such an attempt is invalid since it "goes beyond the essential objects of zoning." He asserts "There is everything to indicate that Gloucester Township is not the type of community where the absolute prohibition of mobile home parks is warranted."

Our Constitution empowers the Legislature to enact general laws under which municipalities may adopt zoning ordinances "limiting and restricting to specified districts and regulating therein, buildings and structures, according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land, and the exercise of such authority shall be deemed to be within the police power of the State." N.J. Const. Art. IV, Sec. VI, par. 2. And our Constitution commands that all laws concerning local government, and zoning laws are in that class, be construed liberally in favor of municipal power. N.J. Const. Art. IV, Sec. VII, par. 11.

In N.J.S.A. 40:55-30 and N.J.S.A. 40:55-31 the Legislature has given municipalities extensive power to create districts and regulate structures and the use of land therein through zoning ordinances. The guiding purpose in exercising this power is set forth in R.S. 40:55-32 as:

"Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value

of property and encouraging the most appropriate use of land throughout such municipality."

The role of the judiciary in reviewing zoning ordinances adopted pursuant to the statutory grant of power is narrow. The court cannot pass upon the wisdom or unwisdom of an ordinance, but may act only if the presumption in favor of the validity of the ordinance is overcome by an affirmative showing that it is unreasonable or arbitrary. Kozesnik v. Township of Montgomery, 24 N.J. 154, 167 (1957); see Cunningham, "Control of Land Use in New Jersey," 14 Rutgers L. Rev. 37, 48 (1959). By these standards which control judicial review, the plaintiff to prevail must show beyond debate that the township in adopting the challenged amendment transgressed the standards of R.S. 40:55-32. In other words, if the amendment presented a debatable issue we cannot nullify the township's decision that its welfare would be advanced by the action it took.

"It cannot be said that every municipality must provide for every use somewhere within its borders." Fanale v. Borough of Hasbrouck Heights, 26 N.J. 320, 325 (1958). The fact that a municipality is largely undeveloped does not impose a contrary obligation. Sound planning and zoning look beyond the present into what lies ahead in the hopes of the planners. "It requires as much official watchfulness to anticipate and prevent suburban blight as it does to eradicate city slums." Lionshead Lake, Inc. v. Township of Wayne, 10 N.J. 165, 173 (1952), appeal dismissed 344 U.S. 919, 73 S. Ct. 386, 97 L. Ed. 708 (1953).

This court has considered several cases in which a municipality's zoning ordinance was attacked as unreasonable because it prohibited certain structures or uses.

In Duffcon Concrete Products, Inc. v. Borough of Cresskill, 1 N.J. 509 (1949) this court held a municipality could through its zoning ordinance permit light ...


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