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J.D. Construction Corp. v. Board of Adjustment of Township of Freehold

Decided: April 18, 1972.

J.D. CONSTRUCTION CORP., A NEW JERSEY CORP., PLAINTIFF,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FREEHOLD AND TOWNSHIP OF FREEHOLD, IN THE COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANTS. FREEHOLD DEVELOPMENT CO., A PARTNERSHIP, PLAINTIFF, V. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FREEHOLD AND THE TOWNSHIP OF FREEHOLD, IN THE COUNTY OF MONMOUTH, A MUNICIPAL CORPORATION, DEFENDANTS



Lane, J.s.c.

Lane

In these consolidated actions in lieu of prerogative writs plaintiffs, each of which sought a special exception under N.J.S.A. 40:55-39(b) to construct a garden apartment complex, appealed from denials by the defendant Board of Adjustment of the Township of Freehold and also contested the validity of certain provisions of the Zoning Ordinance of defendant Township of Freehold. At the conclusion of the final hearing the Court orally determined the appeals from the denials by the Board and decided an attack on certain provisions of the Zoning Ordinance. This opinion disposes of the two remaining issues, the validity of Article 10.26-9, subparagraph (W), and Article 7.1-3 of the Zoning Ordinance. Both plaintiffs challenge Article 10.26-9, subparagraph (W); plaintiff Freehold Development Co. challenges Article 7.1-3.

Article 10.26-9, subparagraph (W), provides:

The total number of individual apartment units in all apartment projects within the Township of Freehold shall not exceed fifteen (15) per cent of the total number of single family residences situated within the limits of the Township of Freehold.

Article 7.1-3 provides:

Parking facilities may be located in any yard area in all zones. In single family residential zones any parking facilities with a capacity of more than four (4) vehicles shall be permitted only in a side or rear yard.

Municipalities have no inherent authority to enact zoning ordinances. Kirsch Holding Co. v. Borough of Manasquan , 111 N.J. Super. 359, 365 (Law Div. 1970), rev'd on other grounds 59 N.J. 241 (1971); Piscitelli v. Township Comm. of Tp. of Scotch Plains , 103 N.J. Super. 589, 594 (Law Div. 1968). Such authority is limited to that given by statute. Kohl v. Mayor and Council of Borough of Fair Lawn , 50 N.J. 268, 275 (1967); Morris v. Postma , 41 N.J. 354, 359 (1964); New York Cent. R. Co. v. Borough of Ridgefield , 84 N.J. Super. 85, 92 (App. Div. 1964); Piscitelli v. Township Comm. of Tp. of Scotch Plains, supra , 103 N.J. Super. at 594.

N.J. Const. , Art. IV, § VI, par. 2, grants the Legislature power to enact enabling legislation to empower the municipalities to enact zoning legislation. N.J.S.A. 40:55-30 specifically gives municipalities authority to "limit and restrict to specified districts * * * regulate 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 * * *." N.J.S.A. 40:55-31 authorizes municipalities to create and regulate districts in order to carry out the purposes of the statute. All such regulations must be uniform for each class or kind of structure or use throughout the district, but the regulations in one district may differ from those in another. N.J.S.A. 40:55-32 sets forth the purposes of zoning legislation and the essential considerations. It provides:

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, flood, 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.

Zoning ordinances must be given a reasonable construction and application. They are to be liberally construed in favor of the municipality. N.J. Const. , Art. IV, § VII, par. 11; Place v. Board of Adjustment of Borough of Saddle River , 42 N.J. 324 (1964); Yates v. Board of ...


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