Frank J. Durkin Lumber Co. v. Fitzsimmons

• Decision Date: 14 October 1929
• Docket Number: No. 34.,34.
• Parties: FRANK J. DURKIN LUMBER CO. v. FITZSIMMONS et al.
• Court: New Jersey Supreme Court

147 A. 555

FRANK J. DURKIN LUMBER CO.

v. FITZSIMMONS et al.

No. 34.

Court of Errors and Appeals of New Jersey.

Oct. 14, 1929.

(Syllabus by the Court.)

Appeal from Supreme Court.

Proceeding by George Fltzsimmons, Recorder of the Town of Belleville, and another, against the Frank J. Durkin Lumber Company, for violation of an ordinance. Judgment of conviction was affirmed in the Supreme Court (6 N. J. Misc. Rep. 1102, 143 A. 816), and defendant appeals. Reversed.

John Larkin Hughes and Merritt Lane, both of Newark, for appellant.

John B. Brown, of Newark, for respondents.

CASE, J. This case comes up on an appeal from a judgment (143 A. 816, 6 N. J. Misc. R. 1102) of the Supreme Court affirming a conviction of the appellant for violation of the provisions of a zoning ordinance of the town of Belleville; the proceedings having been brought before that court on a writ of certiorari. The alleged offense, as charged in the complaint, consisted of unlawful using, on' specified days between March 1 and 13, inclusive, 1928, certain premises as a building material storage yard, contrary to the ordinance which prohibited such use in that area; and, further, contrary to the ordinance of occupying and using the premises as aforesaid without first having secured a certificate of occupancy from the superintendent of buildings therefor. The conviction appears to include two subsequent days, namely, March 16 and 19, 1928, a discrepancy that is apparently disregarded.

The lands of the appellant are peculiarly situated. They are, in shape, an oblique quadrangle, bisected on the north and west by the boundary line that separates the towns of Bloomfield and Belleville, and therefore the lands lie partly in each of these municipalities. The Bloomfield portion is zoned for Industrie's; the Belleville portion is zoned as an "A" residence section. Appellant's office building, from which its lumber business is conducted, is on the Bloomfield side. There are no buildings or structures on the Belleville portion, the only use made of the last mentioned lands being for the piling and storing of lumber, not nearer Belleville avenue, however, than approximately 180 feet. The main frontage is on Belleville avenue, 105 feet in Bloomfield and 69 feet in Belleville. Measured by square feet of area, the conditions are reversed, and the much larger portion lies in Belleville. Furthermore, the Belleville portion has, and the Bloomfield portion has not, railroad frontage and railroad facilities. Use of the Belleville land is necessary to enable the owner to conduct its business.

Geographically, the conditions of the Belleville land are these: On the south, for the entire rear width of the tract, namely, 217 feet, runs the Greenwood Lake Division of the Erie Railroad; beyond which is the combined office and home of a man engaged in the trucking business, as is also his three-car garage used to house his five and seven ton trucks. To the east of the rear of the lands, at a distance of between 600 and 1,000 feet, along the railroad, is the considerable factory plant of the National Grain & Yeast Company; adjoining and paralleling the railroad in an unbuilt and undeveloped space apparently reserved for a street; paralleling which, and farther north, is a residence street, Smallwood avenue, which swings at right angles, as it nears appellant's property, into Pleasant avenue. Between appellant's east line and Pleasant avenue there are no structures except a real estate office. To the north of appellant's property is Belleville avenue, on the far side of which are extensive greenhouses—characteristic glass structures—beside which is a high roadside sign advertising the establishment as the "Mountain Pink Nursery." To the west is the town of Bloomfield, zoned "industrial," except for a gore at the rear where the lands of a chemical plant extend into Belleville and bind on the appellant's west line.

The Belleville ordinance was adopted September 4, 1923, and, not in terms, but by excluding all uses except those specifically enumerated, prohibited the use of so much of appellant's lands as lie within the limits of the municipality for the storage of building materials or for the operation of a lumber business. In or about the month of March, 1926, appellant bought the entire tract as a unit, and, without authority from the municipality, proceeded to use the Belleville lands for the piling and storage of lumber incidental to the business conducted from the buildings situated in Bloomfield. We consider, however, that such piling and storage of lumber was an essential part of the business, and was, to that extent, the conducting of that business in the affected area. In other words, the use did not conform to the ordinance. It was a nonconforming use. Was the use at its inception therefore unlawful? That depends upon whether or not the ordinance was lawful in its prohibition; and we shall first consider the law as it was prior to the zoning amendment, and then in the light of that enactment.

The ordinance was adopted in what the town authorities conceived was a compliance with the provisions of the Municipalities Act, chapter 152, p. 319, P. L. 1917, as amended and supplemented, chapter 240, p. 455, P. L. 1920, and chapter 162, p. 277, P. L. 1922. That legislation and an ordinance passed thereunder were considered by this court in Ignaciunas v. Nutley, 99 N. J. Law, 389, 125 A. 121, 122. It was therein held (Gummere, C. J.) that "the legislature in its grant of power to the several municipalities of the state to regulate the use to which a property owner may put his property, even to the extent of prohibiting its use for a particular purpose, limited that power by the provision of the statute that such regulation must 'be designed to promote the public health, safety and general welfare.' If, therefore, the ordinance, in its application to the property of any particular owner, does not come within the limitation of the statute, to that extent it is without legal justification and void." The reasoning of the case clearly demonstrated, and the opinion concisely held, that the ordinary use of property is not authorized by the general welfare clause of the statute to be prohibited because repugnant to the sentiments or desires of a particular class residing in the immediate neighborhood thereof, but only because such use is detrimental to the interests of the public at large; that "the restriction authorized by this provision of the statute upon the untram-meled use of property for the promotion of the general welfare of the community must be such as will tend in some degree to prevent harm to the public generally or to promote the common good of the whole of the people of such community."

On this point the main argument presented by respondents in the instant case is that of an alleged fire hazard, and this argument becomes unconvincing when the circumstances of the neighborhood, the arrangements on the appellant's property, and the fact that the ordinance does permit the disputed use in the business zone, are considered in the light of the opinions in Ingersoll v. South Orange, 128 A. 393, 3 N. J. Misc. R. 335, affirmed 102 N. J. Law, 218, 130 A. 721, Rudensey v. Montclair, 131 A. 906, 4 N. J. Misc. R. 103, and Karke Realty Associates v. Jersey City, 104 N. J. Law, 173, 139 A. 55. Respondents refer to chapter 146, p. 324, of the Laws of 1924, in support of the lawful application of the ordinance; but that statute was reviewed by this court in Krumgold v. Jersey City, 102 N. J. Law, 170, 130 A. 635, and the principle stated in the Nutley Case upheld.

As matters stood in March, 1926, it had been clearly enunciated that a prohibitive ordinance, to be within the law, must be in very definite and substantial relationship to the safety, health, morals, or general welfare of the community. It seems redundant to repeat the reasoning, the applications, or the illustrations of the cited cases. Sufficient to say that the prohibition in controversy did not have that relationship. We reach the conclusion, therefore, that in March, 1926, when the use began, the ordinance, so far as it prevented the use of appellant's property for the purpose to which the property was actually put, was not...