# Lionshead Lake, Inc. v. Township of Wayne

> Supreme Court of New Jersey · June 26, 1952 · 10 N.J. 165

URL: https://www.frixlaw.com/law-library/cases/9631387

## Case

- **Full name:** Lionshead Lake, Inc., Plaintiff-Respondent, v. Township of Wayne, Defendant-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** June 26, 1952
- **Citations:** 10 N.J. 165; 89 A.2d 693; 1952 N.J. LEXIS 234
- **Precedential status:** Published
- **Opinion:** Concurrence by Jacobs
- **Judges:** Vandebbilt, Jacobs, Oliphaht
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Jacobs, J.
(concurring). The Township of Wayne is a sprawling residential municipality which is sparsely populated and largely undeveloped. Like many Worth Jersey communities it is fertile territory for extensive development; unlike less fortunate communities it is still in a position to plan and control its development and avoid the ravages which may be observed in unplanned and unsightly urban, and occasional suburban, municipalities.
In 1946 the township, acting through its planning board, engaged a professional city planner to formulate a master plan. Working with the board and a citizens committee he submitted his plan and included therein a recommendation that every new dwelling in the township have minimum living space of 1,200 square feet. After considerable discussion the township declined to accept the proposed minimum but did provide in its ordinance of July 12, 1949, that one-story dwellings shall have not less than 768 square feet, that two-story dwellings with garages attached shall have not less than 1,000 square feet, and that two-story dwellings without garages attached shall have not less than 1,200 square feet. The figure of 768 feet was approved after weighing all the pertinent factors including the fact that during the preceding year 85% of the applications for building permits were for dwellings containing 768 feet or more in living space and the further fact that the 768 figure would enable the use of “standard size lumber” in 24' x 32' houses. The provisions with respect to two-story dwellings were influenced in considerable part by aesthetic considerations which I believe to be entirely proper. See Point Pleasant Beach v. Point Pleasant Pavilion, 3 N. J. Super. 222, 225 (App. Div. 1949); Heher, J., dissenting in Brookdale Homes, Inc. v. Johnson, 126 N. J. L. 516, 521 (E. & A. 1941); Sayre, Aesthetics and Property Values, 35 A. B. A. J. 471 (1949); Zoning: Permissible Purposes, 50 Col. L. Rev. 202, 212 (1950). In *177 the Point Pleasant case I recently expressed the view, to which I adhere fully, “that it is in the public interest that our communities, so far as feasible, should be made pleasant and inviting and that primary considerations of attractiveness and beauty might well be frankly acknowledged as appropriate, under certain circumstances, in the promotion of the general welfare of our people.” And in the Brookdale case Justice Heher expressed the ■ view that, on principle, regulation on aesthetic grounds would seem to be within the police power “if so far promotive of the interests of the public at large, through the resultant community development and profit, as to outweigh the incidental restraint upon private ownership.” Cf. Wright v. Vogt, 7 N. J. 1, 7 (1951); General Outdoor Adv. Co. v. Department of Public Wks., 289 Mass. 149 , 193 N. E. 799 , 816 (Sup. Jud. Ct. 1935), appeal dismissed General Outdoor Advertising Co. v. Hoar, 297 U. S. 725 , 56 S. Ct. 495 , 80 L. Ed. 1008 (1936); Perlmutter v. Greene, 259 N. Y. 327, 332 , 182 N. E. 5, 6 (Ct. App. 1932). To the extent that our earlier cases express outmoded narrower doctrines (see Passaic v. Paterson Bill Posting Co., 72 N. J. L. 285, 287 (E. & A. 1905)) they ought to, be expressly disavowed.
In the light of modern understanding, adequate living space must be considered as having reasonable relation to health, particularly mental and emotional health. See Report on Planning the Home for Occupancy issued by the Committee on the Hygiene of Housing of the American Public Health Association, pp. 1, 17 (1950); Thompson v. City of Carrollton, 211 S. W. 2d 970 (Tex. Civ. App. 1948); Flower Hill Building Corp. v. Village of Flower Hill, 199 Misc. 344 , 100 N. Y. S. 2d 903 (Sup. Ct. 1950). Cf. Simon v. Needham, 311 Mass. 560 , 42 N. E. 2d 516 , 141 A. L. R. 688 (Sup. Jud. Ct. 1942). During the trial below Dr. Winslow, Professor of Public Health at Yale University for over 30 years, testified forcefully to that effect and also pointed out that “the sense of inferiority due to living in noticeable sub-standard homes probably does more damage to *178 the health of children than all the unsanitary plumbing.” See 60 Yale L. J. 507 (1951). His studies have led him to the view that the proper goals for the present are 400 square feet minimum living space for one person, 750 for two, 1,000 for three and 1,150 for four; the average family in Wayne Township contains between three and four persons. It may be noted that there are numerous communities in our State which have comparable minimum living space requirements. Mr. Herbert Ii. Smith, Chief of the Planning Section of the New Jersey Department of Conservation and Economic Development, testified that of 138 communities replying to his inquiries 64 have such requirements, including 21 which have a single minimum applicable throughout the entire municipality.
The township’s ordinance was attacked by complaint filed in the Law Division in August, 1950, by the plaintiff, a corporation which had developed Lionshead Lake. Prior to July, 1949, it had built approximately 100 houses, including many which contained lesser living space than provided in the ordinance; since the adoption of the ordinance 20 additional houses have been built, all satisfying the prescribed minimum living space requirements. The plaintiff has not at any time sought any exception or variance under B. 8. 40:55-39; on the contrary it sought and obtained from the lower court a judgment which determined that the ordinance is “invalid with respect to Residence ‘A’ and ‘B’ District in which the plaintiff’s property is situated, and the same be and is hereby set aside and of no force and effect and for nothing holden.” Lionshead Lake, Inc., v. Tp. of Wayne, 13 N. J. Super. 490, 500 (Law Div. 1951). The plaintiff’s purpose apparently was to resume the construction of structures, discontinued upon the adoption of the ordinance, containing 484 square feet of living space. The record contains photographs of these tiny structures described at one point as “doll houses”; perhaps the following excerpt from Jonathan Swift’s Verses on Blenheim, though in other context, is not inappropriate:
*179 “Thanks, sir, cried I, ’tis very fine, But where d’ye sleep, or where d’ye dine? I find, by all you have been telling, That ’tis a house, but not a dwelling.”
It seems to me that the lower court’s striking down of the township’s ordinance was clearly erroneous. See Thompson v. City of Carrollton, supra, where an ordinance prescribing a minimum of 900 square feet was sustained; Dundee Realty Co. v. Omaha, 144 Neb. 448 , 13 N. W. 2d 634 (1944) where an ordinance providing for 1,000 square feet minimum for one-story dwellings and 1,200 square feet minimum for more than one-story dwellings was likewise sustained; and Flower Hill Building Corp. v. Village of Flower Hill, supra, where the court declined to declare that an 1,800 square feet minimum was invalid on its face. Admittedly the township’s ordinance was entitled to the benefit of the presumption of validity and reasonableness. Lumund v. Board of Adjustment of the Borough of Rutherford, 4 N. J. 577, 586 (1950); Guaclides v. Englewood Cliffs, 11 N. J. Super. 405, 411 (App. Div. 1951). It constituted important legislative action representing the governing body’s best judgment as to what zoning restrictions were required to promote the health, morals and general welfare of the community as a whole. Decent respect for its problems and sincerity required that its action remain unimpaired in the absence of clear showing that it was arbitrary, unreasonable, or beyond the authority of the general Zoning Act. Cf. Ogden v. Saunders, 12 Wheat. 213, 270 , 25 U. S. 213, 270 , 6 L. Ed. 606, 625 (1827). I find no such showing in the record.
A witness for the plaintiff testified that at the time of the adoption of the ordinance the cost of a house containing 768 square feet of living space, if mass produced, would approximate $9,500 to $10,500. On the other hand, another witness testified “that a year round one-family home, containing 768 square feet in area complying in all respects with the building code of the Township of Wayne would presently cost between $8,500 and $9,200.” Applications *180 for permits filed by the plantiff since the passage of the ordinance indicated that it was constructing such houses a.t even lesser stated costs. The record contains nothing to indicate the buying power of residents of Passaic County where Wayne Township is located, although the May 10, 1953, issue of Sales Management (at p. 414) estimates that Passaic County has an average effective buying income per annum of $6,000 per family, and represents the forty-ninth highest county in the United States. In the light of the foregoing I find no basis for the suggestion that the minimum in the ordinance is unreasonably high; in any event it is clearly within the broad range which should be allowed in the interests of social progress. Cf. Schmidt v. Board of Adjustment, Newark, 9 N. J. 405, 416 (1953).
The further suggestion has been advanced that the ordinance is defective in that it does frot differentiate between various sections of the township and is not related to the number of occupants of the dwelling. This ignores the fact that the ordinance prescribes only minimum footage which is small enough to be applicable throughout the entire community. If any neighborhood ought have a higher minimum perhaps it will be dealt with in a later ordinance; in the meantime no harm is done to it by any of the present restrictions. Similarly, perhaps some later ordinance will attempt to deal with tire complex subject of relating minimum living space to actual occupants; in the meantime the prescribed minimum is sufficiently low to be applied generally. Uo matter what may be the size of the particular family the i'86 feet minimum will be a significant step forward when contrasted with the plaintiff’s “doll houses.” Mathematical precision in the ordinance need not be attained; it is sufficient that its comprehensive provisions are reasonably calculated to achieve ends which are within the broad ambit of proper modern day zoning. Cf. Duffcon Concrete Products, Inc., v. Borough of Cresskill, 1 N. J. 509 (1949); Guaclides v. Englewood Cliffs, supra.
*181 Finally the point has been made that the ordinance does not comply with the requirement in B. 8. 40:55-32 that reasonable consideration be given to the character of the district azrd its peculiar suitability for particular uses with a view of conserving the value of property. The ordinance does not seek to convert a business district into a residential district, as in Scarborough Apartments, Inc., v. City of Englewood, 9 N. J. 182 (1952), nor does it do violence to any of the existing neighborhoods. On the contrary, it simply seeks to preserve and improve the acknowledged residential character of the entire community. See Guaclides v. Englewood Cliffs, supra. The improvement will conserve property values (cf. Sayre, supra; 50 Col. L. Rev. 201, 213 (1950)) and will strengthen the residential nature of every occupied neighborhood within the township including Lionshead Lake. It is inconceivable that the Legislature in B. S. 40:55-32 or elsewhere in the Zoning Act contemplated the frustration of these highly desirable goals. See Greenway Homes v. River Edge, 137 N. J. L. 453, 456 (Sup. Ct. 1948); Birkfield Realty Co. v. Board of Com'rs, of City of Orange, 12 N. J. Super. 192 (App. Div. 1951), certif. denied 8 N. J. 319 (1951).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9631387. Public record. Not legal advice.