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Deal Gardens Inc. v. Board of Trustees of Village of Loch Arbour

Decided: February 6, 1967.

DEAL GARDENS, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
BOARD OF TRUSTEES OF THE VILLAGE OF LOCH ARBOUR, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT



For remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Haneman, J. Hall, J., concurring in result.

Haneman

This is an appeal from a judgment of the Appellate Division affirming a judgment of the Law Division in favor of the Board of Trustees of the Village of Loch Arbour (Loch Arbour). The judgment sustained the validity of a zoning ordinance of said municipality. We granted certification, 47 N.J. 575 (1966).

On July 30, 1954 plaintiff acquired title to an unimproved parcel of land in the Village of Loch Arbour consisting of a corner lot of approximately 308 feet on Edgemont Avenue on its southerly side and 115 feet on Ocean Avenue on its westerly side. The easterly and northerly boundaries were respectively 155 and 300 feet in length.

On October 10, 1958 Loch Arbour adopted a zoning ordinance which provided in part as follows:

"Apartment houses, garden apartments, apartment hotels, hotels, boarding houses, municipal buildings, churches, public schools, including playgrounds and accessory buildings, public parks, and public playgrounds may be located in any district.

An application for a permit for uses by classes of districts, as enumerated in this Section (p-1) and (p-2) shall be made first to the Board of Adjustment who shall hear the application in the same manner and under the same procedure is [ sic ] empowered by law and ordinance to hear cases and make exceptions to the provisions of a zoning ordinance, and the Board of Adjustment may thereafter recommend in writing to the Township Committee that a permit be granted for a use in accordance with the stipulations of this ordinance, if in its judgment the use as it is proposed to be located, will not be detrimental to the health, safety and general welfare of the community and is reasonably necessary for the convenience of the community.

Whereupon the Township Committee may, by resolution, approve or disapprove such recommendation and in case such recommendation shall be approved, the Administrative Officer in charge of granting permits, shall forthwith issue a permit for such structure or use."

Consistent with the above ordinance, plaintiff filed an application with the Board of Adjustment in October 1964 seeking a use permit for a high rise apartment house on the above described premises. The initial hearing on the application was held on December 4, 1964. The matter was then adjourned without date and no further hearing has been held. On January 22, 1965 the 1958 zoning ordinance was amended to the end that only one-family residential buildings and "municipal buildings, parks, playgrounds, and other municipal facilities" were permitted in the municipality. On February 8, 1965 plaintiff instituted an action seeking to set aside Ordinance No. 65 on the ground, among others, that the ordinance was unreasonable, arbitrary and capricious as to the premises in question and as such deprived plaintiff of property rights in violation of the due process clause of the Fourteenth Amendment and Article I, Paragraphs 1 and 20 of the 1947 Constitution of the State of New Jersey. On April 30, 1965 during the pendency of that suit, the Village passed Ordinance No. 66, amending and supplementing the previous two zoning ordinances. Ordinance No. 66 divided Loch Arbour into two zones, a business zone and a residential zone.

Plaintiff's lands were placed in the "Residence Zone." Section 2B(2) of said ordinance provides:

"'(2) Within the Residence Zone, no building, structure, enclosure or lot shall be used, and no building, structure or enclosure shall be erected or altered which is intended or designed to be ...


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