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Township of Livingston v. Marchev

Decided: November 30, 1964.

TOWNSHIP OF LIVINGSTON, PLAINTIFF-RESPONDENT,
v.
ALFRED MARCHEV AND ANN MARCHEV, DEFENDANTS-APPELLANTS



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

Defendants Alfred Marchev and Ann Marchev, husband and wife, were convicted in the Municipal Court of the Township of Livingston on two charges: on complaint of the township manager for violation of ordinance No. 46 prohibiting, subject to stated exceptions, the parking of trailers within the municipality; and on complaint of the zoning officer for violation of the local zoning ordinance. They were consolidated for trial.

On appeal to the County Court, and after a trial de novo on the stenographic record, the convictions were affirmed. A reversal of the trial court's determinations is urged before us for three reasons: (1) the prohibitory ordinance is invalid as arbitrary, capricious and unreasonable, and it exceeds the general regulatory powers of the municipality; (2) the parking of a trailer adjacent to a one-family residential dwelling is a permitted accessory use under the local zoning ordinance; and (3) the prosecution failed to prove beyond a reasonable doubt each of the elements of the offenses charged. At oral argument this third point was abandoned.

Succinctly stated, the facts are: Defendants reside in a one-family dwelling at 96 Belmont Drive in an "R-4" residence

district of the Township of Livingston. In October 1962 they purchased a camp trailer, described by the zoning officer as "a small house trailer." It is a mobile unit, but not self-propelled, with a trailer hitch for attachment to an automobile. The facility is approximately seven feet long, six feet wide and six feet high; it is self-containing for camping, with sleeping accommodations, a sink and cooking equipment.

The Marchevs' use of their trailer was principally for camping over weekends, and it was only utilized for living purposes when they were away from home on recreational trips. When at home the trailer was generally parked or stored near their house on Belmont Drive. The building inspector testified, "It was parked alongside of the house. * * * Well, roughly it was back about three or four feet from the front of the house on the side of the house. * * * It has been there for quite some time." Defendants had been notified by the zoning officer, in person and by letter, to remove their parked vehicle.

AS TO ORDINANCE NO. 46. It is entitled "An Ordinance defining trailers or camp cars and prohibiting the parking or placing of the same within the limits of the Township of Livingston." The proscriptive language is coupled with an exception. We quote:

"It shall be unlawful for any person to park any trailer or camp car on any street in the Township of Livingston or on any premises within the limits of the Township except for the purpose of repair or storage. Any such trailer or camp car undergoing repairs or being stored shall be kept within a building and shall not during such period of repairs or storage be used by person as a dwelling or sleeping place." (Section 2)

That the camping unit in question is a "trailer" within the definition of that word set forth in said ordinance is not controverted. The complaint against the Marchevs was predicated upon a violation of the ordinance in that their camp trailer was stored on their premises in the township but not "within a building."

While defendants concede that municipalities may by ordinances regulate trailer camps, camp sites and trailer residences,

they cite Morris v. Elk Tp. , 40 N.J. Super. 34 (Law Div. 1956), and Devine v. Mantua Tp. , 28 N.J. Super. 299 (Law Div. 1953), for the proposition that such ordinances are ultra vires and unconstitutional where they are applied to an individual trailer used as a dwelling upon a lot owned or leased by the owner of a trailer. Thus they argue, "how can it be within police power to regulate the mere parking or ...


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