siting of group home for handicapped children not arbitrary and capricious where “[t]he State negotiated with officials of [the municipality] to assure that [the home] would continue to be compatible in appearance with the neighborhood and met with concerned residents of the town"
How later courts described this case
- siting of group home for handicapped children not arbitrary and capricious where “[t]he State negotiated with officials of [the municipality] to assure that [the home] would continue to be compatible in appearance with the neighborhood and met with concerned residents of the town"
- stating that zoning regulation “must be reasonably designed to resolve the problem without imposing unnecessary and excessive restrictions on the use of private property”
- “When the Mantoloking ordinance defining ‘family’ as those persons related by blood, marriage or adoption is measured against the demands of due process, it is clear that the regulation must fall. It so narrowly delimits the persons who may occupy a single family dwelling as to prohibit numerous potential occupants who pose no threat to the style of family living sought to be preserved. As such, we cannot conclude that the definition of ‘family’ is reasonable.”
- invalidating a zoning ordinance that unduly restricted the definition of family
Written by the judges who cited it.
The opinion
Cowboed, P. J. A. D.,
Temporarily Assigned (dissenting). I am of the view that plaintiffs are entitled to injunctive relief because the State is conducting a, therapeutic, institutional operation on the former Graessle property which violates the letter and the spirit of the valid neighborhood scheme created by the restrictions and covenants in the deeds mentioned in the majority opinion.
To say that this building is now used as a “dwelling” within the intent of the restrictions simply because 12 children live there (each for several months at a time) and to ignore the fact that the children are regularly and systematically afforded special therapeutic, nursing and educational attention, as well as ordinary care, by a State-employed staff of half a dozen people, is to close one’s eyes to the fact that in every significant and realistic sense this is an *228 institutional use and therefore an egregious violation of the neighborhood scheme. Plaintiffs in purchasing their respective properties for homes had every reasonable expectation of judicial protection of the integrity of that neighborhood scheme, and this notwithstanding the indisputably beneficent function the structure is now serving. I agree with plaintiffs’ plea that such institutions should be located where they do not intrude on property rights; and if it is felt for any reason that they must, that the State should condemn the private property interests affected and make compensation therefor. Duke v. Tracy, 105 N. J. Super. 442 (Ch. Div. 1969); 2 American Law of Property (1952) § 9.40, p. 449-450.
I am conscious of the rule invoked by the court that land restrictions are ordinarily strictly construed, but the case to which reference is had, Bruno v. Hanna, 63 N. J. Super. 282 (App. Div. 1960), also states that “the rule of strict construction will not be applied to defeat the obvious purpose of a restriction.” Id. at 287. Moreover, it is cardinal that where a common scheme exists, the court must consider the objects and purposes of the original promoters and the circumstances under which the restrictions were created. De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329, 341-43 (Ch. 1892), aff’d, 67 N. J. Eq. 731 (E. & A. 1894); Petersen v. Beekmere, Incorporated, 117 N. J. Super. 155, 168-69 (Ch. Div. 1971); see Riverton Country Club v. Thomas, 141 N. J. Eq. 435, 440 (Ch. 1948), aff’d 1 N. J. 508 (1948); Wagenheim v. Willcox, 105 N. J. Super. 263, 266 (Ch. Div. 1969); cf. Hammett v. Rosensohn, 26 N. J. 415, 423 (1958).
Conceding, arguendo, that the rule of strict construction would not treat the deed restrictions here as prohibitive of more than one family in a dwelling, 1 there can be no reason *229 able dispute from the history and practical construction of the restrictions for over 50 years that they at least prohibit the conduct on the premises of an occupation, as distinguished from a dwelling. Nor can it be gainsaid that, albeit a public one, an occupation is being carried on here. To say that because people live in the structure it is therefore necessarily a "dwelling” rather than an institution, would, by the same logic, validate nursing homes, boarding houses or schools and psychiatric clinics as "dwellings”, and not offensive to this neighborhood scheme. Clearly, the law is to the contrary. Rosenblatt v. Levin, 127 N. J. Eq. 207 (Ch. 1940), aff’d 129 N. J. Eq. 103 (E. & A. 1940); Nerrerter v. Little, 258 Mich. 462 , 243 N. W. 25 (Sup. Ct. 1932).
Against the background of this operation, where children are kept for a few months until improved to the point of being plaeeable in a foster home or other facility, and are no part of the normal surrounding community, the property has become an agency for treatment of children, not their "dwelling”, within the true intent and purpose of the restrictive scheme, reasonably interpreted.
Applying the foregoing precepts to the convincing evidence adduced by plaintiffs concerning the original objects and purposes of these restrictions, and their practical construction ever since, there can be no fair doubt that the current use of this property violates the neighborhood scheme. The resulting damage to plaintiffs is obvious and substantial, as amply attested by the record.
In view of the foregoing, I would enjoin the violation of the neighborhood scheme, and find it unnecessary to consider the matter of the asserted zoning violation.
For affirmance—Chief Justice Hughes and Justices Mountain, Sullivan, Pashman and Schkeibek—5.
For reversal—Judge Coneoeu—1.
But note that in the Bruno case, supra, which apparently so held, the court mentioned the reference by the trial court to the fact that numerous multi-family dwellings in the area of the subject property confirmed the concordant practical interpretation of the deed lan *229 guage. 63 N. J. Super, at 285. The practical construction of the instant restrictions, however, has uniformly been for single-family dwellings only.