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Township of Ewing and Richard Weasner v. King

Decided: November 1, 1974.

TOWNSHIP OF EWING AND RICHARD WEASNER, PLAINTIFF-RESPONDENT,
v.
THOMAS M. KING AND DONALD FORT, DEFENDANT-APPELLANT



Leonard, Seidman and Bischoff. The opinion of the court was delivered by Bischoff, J.A.D.

Bischoff

Defendant Thomas M. King, having been convicted in the municipal court of a violation of a zoning ordinance and fined $200, appealed to the County Court. After a trial de novo on the record, R. 3:23-8(a), defendant was again convicted. This further appeal followed.

Defendant and his father are the owners of a dwelling in the Township of Ewing near Trenton State College. The property was leased to Donald Fort for the 1971-72 school year and, in turn, occupied by eight female college students. Defendant was charged in the complaint with "renting illegally converted one-family residence to eight college students * * *." The complaint was based on an alleged violation of the Ewing Township Zoning Code, Art. T, ยง II, which contains provisions respecting student rooming houses. We are, however, concerned only with paragraph 1 thereof which provides, "No more than four (4) students will be roomed in any one house."

The facts were stipulated at the trial. The sole defense interposed was the contention that the ordinance was unconstitutional. Defendant submitted no evidence in support of that contention and proceeds on the theory that the ordinance is per se invalid, and he basically relies on the cases of Gabe Collins Realty, Inc. v. Margate, 112 N.J. Super. 341 (App. Div. 1970), and Kirsch Holding Co. v. Manasquan, 59 N.J. 241 (1971), as support for that contention.

The narrow issue thus presented is whether a zoning ordinance may properly limit the number of students rooming in a one-family dwelling to four.

Zoning ordinances are to be liberally construed in favor of the municipality and to be given a reasonable construction and application. Place v. Saddle River Bd. of Adj., 42 N.J. 324, 328 (1964); J.D. Const. v. Freehold Tp. Bd. of Adj., 119 N.J. Super. 140, at 145.

We are instructed that:

Judicial review of a zoning ordinance duly adopted by a municipality is confined to a narrow sphere. There is a presumption in favor of the validity of the ordinance which can only be overcome by an affirmative showing that the ordinance is arbitrary or unreasonable. (citation omitted). "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." [ Morris v. Postma, 41 N.J. 354, 359-360 (1964)]

Defendant concedes that a municipality may act by zoning to prevent overcrowding, but would confine the exercise of such power to a specific use ratio formula such as that suggested in Kirsch Holding Co. v. Manasquan, supra, "limiting the number of occupants in reasonable relation to available sleeping and bathroom facilities or requiring a minimum amount of habitable floor area per occupant." Id., 59 N.J. at 254, and contends that the blanket prohibition against no more than four students in a one-family dwelling regardless of the size of the structure renders the ordinance arbitrary, unreasonable and unconstitutional.

We disagree. Defendant's reliance upon the Gabe and Kirsch cases, supra, is misplaced.

In the Gabe case plaintiffs, the owners of two-family houses attacked a provision of the zoning ordinance of Margate City defining a family for the purposes of use restrictions in certain zones as "one or more persons related by blood, marriage or adoption or not more than two unrelated persons occupying a dwelling unit as a single non-profit housekeeping unit." Id., 112 N.J. Super. at 342. This definition was adopted in an attempt to eliminate what the governing body considered undesirable conditions resulting from summer rentals at the seashore for unmarried groups of young men and young women. This court held that the definition was "unreasonably restrictive of the ordinary and natural utility of such property as dwellings for people, and of the right of unrelated people in reasonable number to have recourse to common housekeeping facilities in circumstances free of detriment to the general health, safety and ...


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