Dock Watch Hollow Quarry Pit, Inc. v. Warren Tp.

• Citation: 142 N.J.Super. 103,361 A.2d 12
• Parties: DOCK WATCH HOLLOW QUARRY PIT, INC., a New Jersey Corporation, Plaintiff-Respondent and Cross-Appellant, v. The TOWNSHIP OF WARREN, Defendant-Appellant and Cross-Respondent, and The Township of Bridgewater, Defendant and Cross-Respondent, and The State of New Jersey, Defendant-Respondent and Cross-Respondent.
• Decision Date: 06 May 1976
• Court: New Jersey Superior Court – Appellate Division

Page 103

142 N.J.Super. 103

361 A.2d 12

DOCK WATCH HOLLOW QUARRY PIT, INC., a New Jersey

Corporation, Plaintiff-Respondent and Cross-Appellant, v. The TOWNSHIP OF WARREN, Defendant-Appellant and Cross-Respondent, and The Township of Bridgewater, Defendant and Cross-Respondent,

and

The State of New Jersey, Defendant-Respondent and Cross-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued April 7, 1975.

Remanded April 23, 1975.

Reargued Sept. 11, 1975.

Decided May 6, 1976.

J. Albert Mastro, Bernardsville, for defendant-appellant and cross-respondent, Tp. of Warren (J. Albert Mastro, attorney; Dolores A. Mastro, Bernardsville, on the brief).

Daniel F. O'Connell, Basking Ridge, for defendant and cross-respondent, Tp. of Bridgewater (William W. Lanigan, Basking Ridge, attorney).

Frederick C. Mezey, New Brunswick, for plaintiff-respondent and cross-appellant (Mezey & Mezey, New Brunswick, attorneys; Harmon H. Lookhoff, New Brunswick, on the brief).

Michael S. Bokar, Deputy Atty. Gen., argued the cause for defendant-respondent and cross-respondent State of N.J. (William F. Hyland, Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel).

Before Judges MICHELS, MORGAN and MILMED.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

In this case we are called upon to consider the extent to which a municipality may regulate by ordinance adopted pursuant to the police power a previously declared nonconforming use of land.

Plaintiff Dock Watch Hollow Quarry Pit, Inc. (Dock Watch), the owner and operator of an open pit quarry located in Warren Township (township), brought the present action to invalidate an ordinance regulating quarries adopted by the township. Ordinance No. 69--8, as revised on September 19, 1974 by Ordinance No. 74--23, ¹ declared its purpose to be:

* * * the protection of persons and property and for the preservation of the public health, safety and welfare of the Township of Warren and its inhabitants and to insure that quarrying operations shall be conducted in such a manner as to create a minimum of annoyance from noise and dust to nearby owners or occupants of property, provide for the safety of persons, particularly children, and further to insure that the quarried area shall be suitably and reasonably rehabilitated after quarrying operations have been completed or otherwise terminated.

I

A brief review of the factual context in which this appeal arises is helpful to the resolution of the many issues involved. The Dock Watch quarry is situated on approximately 20 acres of land. Quarrying has been conducted on the land since 1930, long before the adoption of the township's land use ordinance in 1952 in which quarrying on the land was forbidden. The quarry's status as a nonconforming use was declared, and the extent thereof defined, in prior litigation. See Moore v. Bridgewater Tp., 69 N.J.Super. 1, 173 A.2d 430 (App.Div.1961). In that case the operators of the quarry were held entitled to extract traprock and shale from the approximately 20 acres comprising the quarry, as against the contention that the nonconforming use was restricted to that part of the land being quarried at the time the applicable zoning ordinances were adopted.

Following a plenary trial in the present case the trial judge made the following factual findings which do not seem to be seriously disputed and which find ample support in the record. The quarry is the only one in operation in Warren Township and has been conducted on the land in question since 1930. Prior to 1970 the location of the boundary line between Warren and Bridgewater Townships was in doubt, and this uncertainty included that portion thereof which passed through the quarry property. Moore v. Bridgewater Tp., supra, considered this problem and its manifestations at length and concluded from the evidence there adduced that approximately 14 acres of the quarry were located in Bridgewater and the remaining six acres in Warren Township. See 69 N.J.Super. at 9, 173 A.2d 430.

In the early spring of 1971 both Warren and Bridgewater Townships, in an apparent effort to solve the problem created by divided jurisdiction over the quarry, passed a resolution petitioning the State Legislature to enact special legislation redrawing the boundary line between the two townships in such a way as to include all of the quarry within Warren Township. A notice of intention regarding the proposed legislation was published by both townships in a newspaper of general circulation in Somerset County. The resolutions were forwarded to the Legislature and special legislation was passed by both houses and signed into law by the Governor on June 30, 1971. Thereafter, the Dock Watch quarry was entirely in Warren Township and subject to the regulatory ordinance adopted in 1969, portions of which are the subject matter of this appeal.

Dock Watch's business is a competitive one. Its principal competitor is the larger and more extensive Houdaille operation in Bridgewater Township, approximately three miles distant from the Dock Watch quarry. Before the change in boundary most of the quarry was controlled by the Bridgewater ordinance so that both it and its major competitor operated under the same regulatory restrictions. Since the boundary change the quarry has come under the jurisdiction of the allegedly more restrictive Warren Township ordinance, and Dock Watch contends that it will be forced to operate at such a competitive disadvantage that it may be forced out of business if the challenged ordinances are upheld.

The quarry has an elevation of approximately 270 feet as its present floor, and its highest elevation is approximately 550 feet. At present the quarrying operation has not gone below the level of the adjoining roadway to any real extent, but a good portion of the mountain within the quarry property above the roadway level has already been removed during more than 40 years of quarrying. The quarry is bounded by a brook and roadway on the easterly side thereof; the remaining three boundaries are in the portions of the mountain which have not yet been removed.

The general procedure used for obtaining materials from this open-pit type quarry is by means of drilling, blasting, crushing the dislodged material, sorting the crushed materials through a scalping screen, carrying it on conveyor belts to the storage areas, and finally loading it into trucks for delivery to consumers. While most of the material is traprock, there are also deposits of shale, a softer form of rock which is mined by Dock Watch primarily for use as fill and which the trial judge found to have a retail value of $2 a ton. At the time of trial the traprock sold for between $2.50 and $3.50 a ton.

Two of the challenged provisions of the ordinance in question prohibit quarrying below the grade of the adjacent roadway and within a 50-feet buffer strip around the perimeter of the quarry property. The economic consequences to Dock Watch of the enforcement of these provisions were explored in extensive testimony during trial and the estimates thereof were subject to wide variation and considerable dispute. The trial judge found that the total value of the rock and shale deposits in the quarry, including that within the 50-foot buffer strip and that below grade to a depth of 150 feet, consisting of almost 20,000,000 tons, is approximately $50,000,000. The judge also found that deposits contained in the buffer area to grade are approximately 2,670,000 tons with a value of $2.50 a ton, or a total value of $6,700,000, and that the deposits outside the buffer area to grade are approximately 6,660,000 tons with a total value of $16,650,000. The deposits below grade to a depth of 150 feet, forbidden to be removed by the challenged ordinance, are approximately 10,287,000 tons with a value of almost $26,000,000; this valuation does not include any mining in the 50-foot buffer zone because of the necessity to bench and slope the area above grade.

The trial judge stressed the approximate nature of these figures and that the substantial dispute as to the value of the as yet unmined materials stemmed from the computation of the quantity of the available assets which could effectively, from both a legal and practical standpoint, be taken from the quarry. The township's expert stressed the legal requirements as well as the necessity for benching as the basis for his estimates, which were substantially less than those given by the quarry witnesses. For example, with respect to the assets which could be extracted from the buffer strip to grade, the township's estimate was about one-third of that provided by the quarry's principal witness. The trial judge found it unnecessary to make any precise factual determinations as to the extractable quantity of assets within the buffer zone and below grade because, accepting the testimony of either side, the quantity was substantial and the best estimate as to the amount thereof probably lay somewhere between the two offered estimates. He did, however, find that Dock Watch's total present investment in the quarry is about $2,000,000--$1,000,000 for the land and another $1,000,000 for the equipment and other non-real estate assets. The judge also found that the quarry is not reasonably suited for residential or agricultural use and that its highest and best use, 'and indeed its only reasonable use,' is as a stone quarry.

Warren Township has a present estimated population of about 10,000; in 1980 its population is expected to be about 17,000. Within a radius of one-half mile from the quarry there are about 130 homes, a population of about 550--600 and one school. The estimated number of school children within that one-half mile radius is 275, and within one mile of the quarry an estimated 600 children. Within 2,000 feet of the quarry there are approximately 100 homes and 175 school children.

Considerable attention was given to the problem...