Duffcon Concrete Prod.s Inc. v. Bor. Of Cresskill.

• Citation: 64 A.2d 347
• Decision Date: 07 March 1949
• Docket Number: No. A-205.,A-205.
• Parties: DUFFCON CONCRETE PRODUCTS, Inc. v. BOROUGH OF CRESSKILL.
• Court: United States State Supreme Court (New Jersey)

64 A.2d 347

DUFFCON CONCRETE PRODUCTS, Inc.

v.BOROUGH OF CRESSKILL.

No. A-205.

Supreme Court of New Jersey.

March 7, 1949.

Appeal from former Supreme Court.

Certiorari by Duffcon Concrete Products, Inc., against the Borough of Cresskill, to review the decision of the Mayor and Council rejecting the recommendation of the Board of Adjustment that an exception from zoning restrictions be granted to prosecutor. From judgment of former Supreme Court setting aside its zoning ordinance, 137 N.J.L. 81, 58 A.2d 104, the Borough of Cresskill appeals.

Reversed.

Walter H. Jones, of Hackensack, for appellant.

James A. Major and Breslin & Breslin, all of Hackensack, for appellee.

John A. Errico, of Bloomfield, for Joint Council of Municipal Planning Boards in Essex County, N.J., amicus curiae.

VANDERBILT, Chief Justice.

This is an appeal by the Borough of Cresskill from a judgment of the former Supreme Court setting aside its zoning ordinance.

The Borough is a small residential community in Bergen County, comprising about 1,300 acres and having a population of approximately 2,300 persons, in an effort to retain its residential character, the defendant in 1941 adopted a stringent zoning ordinance, establishing four zones, three of which are entirely residential and the fourth (‘D’ zone) is for ‘commercial districts for business centers.’ The pertinent portion of the ordinance dealing with the ‘D’ zone reads (Article 4, s 4):

'A. In any Commercial ‘D’ District, no building or premises shall be used and no building or part of a building shall be erected which is arranged, intended or designed to be used in whole or in part by any fabricating, manufacturing, converting, altering, finishing or assembling where mechanical power exceeding one horsepower electric motor is used, and where the major object of the establishment is to produce goods for sale other than at retail on the premises, or to furnish a service other than for residents of the locality, and where more than five mechanics or workers are habitually engaged on such work, except that in the following listed industries the maximum number of workers engaged on such work shall be as specified below:

'Carpet cleaning employing two workers.

'Dry cleaning shop employing two workers.

'Dyeing where not more than one dyer is employed.

'Enameling, japanning or lacquering, only where the liquid is applied in tanks of not over five cubic feet capacity.

'Tinsmiths, plumbing, gas, steam or hot water fitting shop employing two workers on the premises.

'Milk bottling or distributing station employing three workers.

'No manufacturing except as above set forth shall be permitted in any Commercial ‘D’ District.'

Early in 1946 the prosecutor purchased a tract of vacant land situated in a commercial zone but abutting on a residential district and distant only two blocks from the public school. Without making any inquiry of the borough officials, the prosecutor filled in the land at an estimated cost of $6,000.00 and in the middle of May, 1946, without obtaining a permit or applying for a variance, commenced the manufacture of concrete slabs in the open. The slabs were made for sale but not at retail on the premises. The manufacturing operations utilized the services of approximately forty employees and among other things, a large concrete mixer driven by a ten horsepower motor and a pneumatic drill. The attendant noise, vibration, dirt and dust was considerable and, in addition, trucks moving to and from the site caused traffic snarls during certain periods of the day on the county highway bordering the tract.

Not until the end of June 1946, following almost two months of operation in entire disregard of the provisions of the zoning ordinance, did the prosecutor apply to the Borough authorities for permission to conduct its business. The application was in the form of plans for a proposed structure in which the manufacturing of the concrete slabs would be carried on. After a hearing a variance was denied by the local board of adjustment, the governing body concurring. New plans were submitted to the board of adjustment on September, 1946, and by a divided vote a variance was this time recommended. The recommendation, however, was rejected and the variance was denied by the governing body. Thereupon the prosecutor was granted a writ of certiorari to review the action of the municipality. On review the former Supreme Court held that the restriction in the ordinance against heavy industry was beyond the constitutional limits of municipal zoning power and that the discretion confided to the board of adjustment and the governing body by the ordinance to grant a variance was subject to no adequate standard to guide them and it accordingly set aside the action of the municipal bodies.

The quoted portion of the ordinance constitutes an effective exclusion of all heavy industry from the Borough. The chief meritorious question thus hinges upon the power of the municipality so to legislate. There is no constitutional or statutory provision which would lead us to conclude that a municipality in the adoption of a comprehensive zoning scheme is compelled to set apart a portion of its territory for heavy industrial use without regard to its suitability therefor.

It has been argued that such is the intent of the concluding phrase of R.S. 40:55-30, N.J.S.A., where the legislative grant of authority to zone is stated to ‘include the right to regulate and restrict * * * the location and use and extent of use of buildings and structures and land for trade, industry,...