Glen Rock Realty Co. v. Board of Adjustment of Borough of Glen Rock

• Decision Date: 03 July 1963
• Docket Number: No. A--967,A--967
• Citation: 80 N.J.Super. 79,192 A.2d 865
• Parties: GLEN ROCK REALTY CO., a New Jersey corporation, et al., Plaintiffs-Respondents and Cross-Appellants, v. BOARD OF ADJUSTMENT and Mayor and Council OF the BOROUGH OF GLEN ROCK, et al., Defendants-Appellants and Cross-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 79

80 N.J.Super. 79

192 A.2d 865

GLEN ROCK REALTY CO., a New Jersey corporation, et al Plaintiffs-Respondents and Cross-Appellants, v. BOARD OF ADJUSTMENT and Mayor and Council OF the BOROUGH OF GLEN ROCK, et al., Defendants-Appellants and Cross-Respondents.

No. A--967.

Superior Court of New Jersey Appellate Division.

Argued May 20, 1963.

Decided July 3, 1963.

George Winne, Hackensack, for appellants and cross-respondents.

Marvin H. Gladstone, Hackensack, for respondents and cross-appellants (Walter H. Jones, Hackensack, attorney).

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

FOLEY, J.A.D.

Defendants-appellants and cross-respondents (borough) appeal from that part of a judgment of the Law Division granting plaintiffs-respondents' and cross- appellants' applications to the zoning board of adjustment for its recommendation of a variance from the municipal zoning ordinance. N.J.S.A. 40:55--39(d). Those parties in turn cross-appeal from that part of the same judgment dismissing their demand for a declaration that certain parts of an amendatory ordinance adopted in 1953 are invalid.

The land concerning which the controversy arises is owned in part by the Estate of Cornelia Sikkema, and in part by William and Jennie Sikkema (Sikkema). Glen Rock Realty, Inc. (Realty) is a contract vendee of the land, execution of the contract being dependent upon a determination of the legality of the prospective use intended by the vendee.

The land, consisting of approximately 3.5 acres, is roughly in the shape of a trapezoid and constitutes almost all of a small triangular area pointing south and located between the Erie Railroad tracks and Lincoln Avenue, in the extreme southwesterly section of Glen Rock. On the easterly side the trapezoid is bordered by the main line of the railroad right-of-way for its entire length--510.07 feet. The railroad tracks separate the subject property from the only industrial zone in Glen Rock, and the property had been a part of such zone until the passage of the 1953 ordinance. The industrial zone has been extensively developed for the purposes of business and industry. The railroad tracks accommodate a daily schedule of 40 passenger trains and an undetermined number of freight trains.

The southern border, near the apex of the triangle, runs east and west for a distance of 155 feet between the railroad tracks and Lincoln Avenue. There are two small lots south of the southerly line. South of these lots and beyond Diamond Bridge on Lincoln Avenue are properties which are used for both business and residential purposes. This area lies in Fair Lawn and is zoned for commercial uses.

On the westerly side, the property fronts on Lincoln Avenue for a distance of 427.63 feet. Lincoln Avenue separates Glen Rock from Hawthorne and Bergen County from Passaic County. Fronting on the Hawthorne side of Lincoln Avenue and opposite to the subject property there is a short strip which Hawthorne has zoned as a residence 'B' district. It is occupied by several small frame bungalows in some of which there are conducted nonconforming businesses--landscape gardening, florist and plumbing. One block to the north along the Hawthorne side of Lincoln Avenue marks the beginning of a five-block strip zoned for business and used commercially.

The northerly line of the subject property runs east and west for 391.17 feet and parallels a street known as the Boulevard. On the southerly side of the Boulevard, adjacent to the property in question are several lots, some vacant and some used for residential purposes. The area north of the Boulevard on the Glen Rock side of Lincoln Avenue is zoned as an 'A--2' residential district.

The property is level at grade but slopes sharply toward the railroad tracks and access to it is from Lincoln Avenue only.

For more than half a century the Sikkema family has used the property for a variety of business purposes as well as for residence. One portion of it is presently used by William Sikkema as a residence, and also for a well-drilling operation which requires the storage of large quantities of materials and equipment; the larger remaining portion lies vacant.

Under the Glen Rock zoning ordinance of 1929 the property was zoned for industry. This classification remained unchanged by a 1949 amendment. The ordinance was revised in 1953 and the property was rezoned and restricted to one-family residential uses. The constitutionality of this ordinance as it affects the Sikkema property is the determinative issue in the case.

It appears from the testimony of Allan B. Murray, defendant Mayor and, at the time of the 1953 rezoning, a member of the Borough Council, that William Sikkema and his attorney were present at the council meeting in 1953 when the revised ordinance was adopted. Sikkema and his counsel voiced their objections thereto at that time. The then Mayor, Frank Demarest, stated, 'any time that the Sikkemas come up with a use, a non-residential use, that the Council would be very happy to consider it and he indicated * * * that if everything was agreeable that a zoning change would be made.' Mayor Murray observed that the attitude of the mayor and council at the time was that the property in question could hardly be considered a good residential area and that the purpose of the residential restriction was to allow the property to remain under the control of the planning board, the mayor and council, and the board of adjustment. The deposition of the late Mayor Demarest was introduced; it corroborates Mayor Murray's testimony.

Realty proposes to use the property for a retail shopping center. In a letter to Mayor Demarest, dated February 28, 1961, from D.J. van Keuran, Chairman of the Zoning Board of Adjustment, it appears that the board of adjustment met on February 27 to carry out the council's request that the board consider the proposed use of the Sikkema property for a retail shopping center. On the basis of the board's 'personal observations' they were of the opinion that the proposed use would create traffic problems, enhance sanitary problems and 'fragmentize our central business district without adding materially to the convenience of our citizens.' (The central business district is located some distance to the northwest of the property in question, along Rock Road.) The board preferred more centralization of small business shops, specifically decrying 'the dispersal of buying power into peripheral areas.'

From the deposition of Mayor Demarest it appears that on or about June 10, 1961, defendants Mayor and council introduced an amendment to rezone the Sikkema property for commercial uses. The Glen Rock Chamber of Commerce intervened, as a result of which the proposed amendment was voted down on second reading.

On July 31, 1961 plaintiffs made application for the recommendation of a variance under N.J.S.A. 40:55--39(d). After a hearing in which the foregoing facts were developed the board denied plaintiffs' application and the present action in lieu of prerogative writs was instituted.

The hearing before the board also presented the following additional factual complex. Robert Catlin, a planner for the firm of Pangburn & Bagby, testified that his firm made studies and presented comprehensive plans prior to the 1953 amendment. The firm recommended that the property in question be changed from an industrial to a residential designation. In setting up the residence districts, the planners proposed the establishment of 'Neighborhood Councils' as continuing agencies to allow the residents of a district to make their views known. The comprehensive map, however, leaves the property outside any 'Neighborhood Council.' Catlin stated it was a fair assumption that the property was left out because it was not intended for residential use, although he did not know this from personal knowledge.

Robert F. Edwards, the Director of Planning of Montclair, testified that in 1953 and to the present, the one-family restriction was the most inappropriate use of the property and that commercial use was the most appropriate.

Bernard J. Boreman, a real estate salesman who is handling the contingent sale between plaintiffs Sikkema and plaintiff Glen Rock Realty, Inc. admitted that six houses could be put on the property in question but said the houses could not be sold. He said that efforts had been made to sell the property for residential purposes but 'nobody would even consider it.'

Gerald F. Dederick, a real estate broker, agreed that the property was unsuitable for residential purposes, and stated that it was particularly suitable for a shopping center.

There was also evidence concerning the traffic situation. Abraham Simoff, plaintiffs' traffic expert, testified that Lincoln Avenue is presently used up to 67% Of its safe capacity. A survey indicated that approximately 832 vehicles used the highway both ways between 3:00 and 6:00 P.M. The only traffic control is a 25 miles per hour sign. The proposed retail store development would have a parking capacity of 145 cars. It is...