Lionshead Lake, Inc. v. Township of Wayne

Oliphaht, J.

(dissenting). I find I must dissent from the philosophy and the result arrived at- in the majority opinion. Zoning has its purposes, but as I conceive the effect of the majority opinion it precludes individuals in those income brackets who could not pay' between $8,500 and $12,000 for the erection of a house on a lot from ever establishing a residence in this community as long as the 768 square feet of living space is the minimum requirement in the zoning ordinance. A zoning provision that can produce this effect certainly runs afoul of the fundamental principles of our form of government. It places an unnecessary and severe restriction upon the alienation of real estate. It is not necessary, it seems to me, in order to meet any possible threat to the general health and welfare .of the community.

*182 It should be borne in mind that the threat to the general welfare and health of the community usually springs from the type of home that is maintained within the house rather •than the house itself. Certain well-behaved families will be barred from these communities, not because of any acts they do or conditions they create, but simply because the income of the family will not permit them to build a house at the cost testified to in this case. They will be relegated to living in the large cities or in multiple-family dwellings even though it be against what they consider the welfare of their immediate families.

My difficulty with the provision in this ordinance is that it applies equally to every part of the 25% square miles of this township and it applies without any regard to how the various districts of the community have been zoned. It applies to the districts classed Residence A and B, Business or Industrial Districts. While it is conceivable that some municipalities may be of such a cohesive and homogeneous character as to warrant the imposition of certain uniform regulations on the entire community, viz., the prohibition of any industrial plants in a purely residential community, Duffcon Concrete Products, Inc., v. Borough of Cresskill, 1 N. J. 509 (1949); Struyk v. Samuel Braen’s Sons, 17 N. J. Super. 1 (App. Div. 1951), affirmed o. b., 9 N. J. 294 (1952), the defendant township is certainly not of such character. It is sparsely settled and is made up of a group of widely separated communities or developments, and in some of these developments the minimum living floor space requirements imposed by the ordinance are easily met by all the existing dwellings while in other sections only a minority of the houses meet the standards imposed, and in the plaintiff’s Lionsliead Lake development only about 50% of the dwellings comply.

To impose identical living floor space minimums on all the sections of such a municipality is to fail completely to give any consideration whatever to the “character of the district and its peculiar suitability for particular purposes.” *183 While zoning regulations may legitimately be imposed in the district to serve the general welfare by “conserving the value of property and encouraging the most appropriate uses of land,” such regulations are wholly unreasonable and beyond the zoning power and an unwarranted interference with private property rights if they are designed or operate to change completely, for better or for worse, the very character of the district. Any regulation imposed must bear a reasonable relation to the particular area subject thereto. Insofar as the minimum living floor space requirements of the ordinance under review apply to the entire community and to the plaintiff’s properties in particular, they are clearly arbitrary and capricious and were very properly set aside by the trial court as an abuse of the zoning power.

My views on this particular phase of zoning do not prohibit minimum floor space in a house in particular districts or a proper correlation of minimum floor space in the house and the area of the lot or lots in question, but I cannot agree with the majority when they state with respect to this minimum square footage requirements that “whether it will ‘prevent the overcrowding of land or buildings’ and ‘avoid undue concentration of the buildings’ depends in large measure on the wisdom of the governing body of the municipality.” This is clearly indicative of a lack of standard with respect to this particular phase of zoning in the Zoning Act itself and it assumes that the discretion of the zoning board or governing body of a municipality amounts to wisdom. To buttress their position the majority further states: “We may take notice without formal proof that there are minimums in housing below which one may not go without risk of impairing the health of those who dwell therein.” In so stating they inferentially approve certain theories advanced to sustain this ordinance by text writers and certain reports of the Department of Conservation and Economic Development. But it seems to me that the decision as to what the minimum square footage in a particular house should be is essentially within the legislative province, and the Legislature not hav *184 ing spoken it is not within the power of this court or the Department of Conservation and Economic Development to attempt to supply the deficiency in the statute.

I am authorized to say .that Mr. Justice Wachenfeld concurs in this opinion.

For reversal — Chief Justice Vanderbilt, and Justices Heiier, Burling, Jacobs and Brennan — 5.

For affirmance — Justices Oliphant and Waciibneeld —2.