Bern v. Borough of Fair Lawn

• Decision Date: 16 February 1961
• Docket Number: No. A--785,A--785
• Citation: 168 A.2d 52,65 N.J.Super. 435
• Parties: Benjamin BERN, Plaintiff-Appellant, v. BOROUGH OF FAIR LAWN, Bergen County, etc., et al., Defendants-Respondents, and Royal Industries Corp., a corporation of the State of New Jersey, Intervener-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 435

65 N.J.Super. 435

168 A.2d 52

Benjamin BERN, Plaintiff-Appellant, v. BOROUGH OF FAIR LAWN, Bergen County, etc., et al.,

Defendants-Respondents,

and

Royal Industries Corp., a corporation of the State of New

Jersey, Intervener-Respondent.

No. A--785.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 14, 1960.

Decided Feb. 16, 1961.

Heyman Zimel, Paterson, for plaintiff-appellant.

Edward M. Schotz, Paterson, for intervener-respondent, Royal Industries Corp. (Shavick, Thevos and Schotz, Paterson, attorneys).

Thomas F. Dalton, Fairlawn, filed a statement in lieu of brief for defendants-respondents Borough of Fair Lawn and others.

Before Judges CONFORD, FREUND and KILKENNY.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

This case has been before the Board of Adjustment of Fair Lawn, the mayor and council of that borough, and the Superior Court, Law Division, twice. The last judgment of the court sustained a variance from the zoning ordinance of the municipality for the operation of a car-washing station granted by the governing body upon recommendation of the board of adjustment. Plaintiff is a resident and taxpayer of the municipality, who operates a car-washing station in another part of the borough. The owner of the property in question, Royal Industries Corp., applicant for the variance, was permitted to intervene in the action by order of the court.

The property in question is a vacant tract of land with frontage of 180 feet on the southern side of Broadway in Fair Lawn, which is also New Jersey State Highway Route No. 4. It is in a district zoned 'B--1 Business.' From this point easterly somewhat over a mile, Broadway on both sides is strip-zoned in varying depths for business uses. Immediately abutting the property on the west is the right of way of the Erie Railroad Co., Broadway becoming depressed at that point to go under a railroad overpass. West of the right of way of the railroad, the southerly side of Route No. 4 lies in the neighboring Borough of East Paterson. But the opposite side of Broadway for a half mile west of the railroad is situate within Fair Lawn, the area nearest to the railroad being zoned 'restricted industry' and the remainder residential 'R-1-3.'

Across the street from the subject property on Broadway are a lumber yard and a macaroni factory. The subject property occupies the block on the south side of Broadway between the railroad and Whitehall Street. Continuing easterly on that side of Broadway are found, in the following order, a gasoline service station, a parking lot, four stores, A theatre, an intersecting side street, Midland Avenue, a bowling alley and bar, a retail 'discount house' and a number of super-markets. On the other side of the street, within 1,000 feet from the subject property, is a Church. (The theatre is also within 1,000 feet of the subject property.)

The municipal zoning ordinance presents a glaring ambiguity as to whether car-washing stations, referred to by the respondents as auto laundries, are permitted in B-1 business districts, generally.

Section VII of the ordinance deals with 'Uses of Land, Building or Structures.' The list of 'uses permitted' thereunder in a B-1 district, besides any of a residential nature except multiple-family dwellings, and retail stores and shops, includes a number of specified miscellaneous types of use, and, in paragraph 11: 'Bus terminals, public garages, automobile repair shops, automobile service stations at which general repairing is done, automobile parking lots, in all cases subject to the provisions of section IX A2 and A3.' Car-washing stations and auto laundries are not mentioned as permitted uses for a B-1 district in section VII. However, section IX, 'Supplementary Regulations,' provides, in 'A. Uses,' '3. Garages and Filling Stations,' as follows:

'In a B-1 or B-2 business district plans for the erection or structural alteration of any garage for more than five motor vehicles or of a filling station, shall be approved by the Planning Board. Said Board may require such change therein in relation to yards, location of pumps and buildings as it may deem best suited to insure safety, to minimize traffic difficulties and to safeguard adjacent properties. No part of any entrance to or exit from any public garage accommodating more than five motor vehicles, or any filling station, or any car washing station shall be located within 50 feet of a residential district. No permit shall be recommended for the erection of a garage for more than five motor vehicles, a motor vehicle service station or gas filling station or a Car washing station if any part of the lot or plot involved is situated within a distance of one thousand (1,000) feet of a public school, a hospital maintaining as many as 15 beds for patients, A church, a theatre, a public library, public park or playground, or a fire station * * *.

'No permit shall be recommended for the erection of a garage for more than five (5) motor vehicles, a motor vehicle service station or gas filling station or a Car washing station in the business districts abutting Broadway from the Erie Railroad to the easterly Borough line, * * *.' (Emphasis added.)

We thus find, in section IX A 3, specific limitations upon the construction of car-washing stations notwithstanding such a use is not specifically included within the purportedly comprehensive category of permissive uses for a B-1 district in section VII.

On December 1, 1958 the board of adjustment granted a variance to allow the construction of the car-washing station notwithstanding the structure was within 1,000 feet of both a church and a theatre, and within a business district abutting Broadway. This action followed a hearing at which a real estate expert and a planning expert testified, in substance, that the proximity of the railroad and the slope of the front of the property would depress its utility for retail store uses; and that a car-washing station would not be a greater detriment, in a zoning sense, than many of the presently permissible uses. The planning expert also testified that it was unusual for a zoning ordinance to provide distance limitations from public buildings for car-washing stations, and that limitations for garages and gasoline stations were usually less than 1,000 feet.

The resolution of the board stated: 'There is a divided highway between this establishment and the church.' It went on to compare such an establishment with various other types of business activity which could be conducted legally on the property without restriction, from the standpoint of the automobile traffic which might be generated thereby. It was further found that 'the location of this property contiguous to the Erie Railroad makes it unsuitable for any other higher type of retail establishment, thus creating a hardship on the land.'

Upon challenge of the variance by the present plaintiff and others the Law Division, Bergen County, set aside the variance as beyond the competence of the board of adjustment. That body had conceived itself as possessed of jurisdiction under the 'hardship' provisions of N.J.S.A. 40:55--39(c) to grant the variance, rather than as being limited to a recommendation of a variance to the governing body, as provided in N.J.S.A. 40:55--39(d), where 'in particular cases and for special reasons' a variance is sought 'to allow a structure or use in a district restricted against such structure or use.' In what is labelled a 'final judgment' the court found car-washing stations to be a permitted use in a B-1 district under section VII, paragraph 11; that the restriction of section IX A 3 contemplated an application for a recommendation for relief therefrom by the board of adjustment to the governing body under (d) of the statutory section cited; and held that the resolution of December 1, 1958 should be set aside and the matter remanded to the board of adjustment for further hearings.

At the hearing preceding entry of the foregoing judgment the judge made clear his view that the situation was one in which 'special reasons' existed for a recommendation of a variance from the 1,000 foot and Broadway area restrictions, but that the cause would have to be remanded to make the procedure conform with a statutory (d) proceeding. He conceived there had been insufficient showing of a 'hardship' case under a statutory (c) proceeding.

A new application was filed and a hearing was conducted before the board of adjustment June 30, 1959. The applicant relied upon the testimony adduced at the first hearing. The plaintiff submitted the testimony of a real estate expert, who testified, in effect, that the property was not unsuitable, economically or otherwise, for any of the multifarious uses to which the ordinance permitted it to be devoted as districted. He also considered that a car-washing station at that point would be a 'substantial detriment to the public good' because traffic backs up at that point 'underneath the trestle with the (traffic) light, now you are going to have egress there again and you are going to cause more tieup.'

At the conclusion of the hearing, after a short recess, the board adopted a previously prepared typewritten resolution recommending the variance. It set forth the following reasons:

'1. The property in question which is located entirely within the Business Zone and fronts on the highway is bordered on all sides by highly commercialized activities.

'2. Directly across the highway from the property is an Industrial Zone on which is located a lumber yard and a macaroni factory which restricts its desirability for the type of uses to which it may be put or the appropriate uses to which it may be developed.

'3. The property is so situated that the entire westerly boundary line is bordered by the railroad tracks utilized by the Erie Railroad for freight and passenger service and the attendant noise further limits its utilization for...