H. Behlen & Bros., Inc. v. Mayor and Council of Town of Kearny

• Decision Date: 04 June 1954
• Docket Number: Nos. A--180,A--182,s. A--180
• Citation: 31 N.J.Super. 30,105 A.2d 894
• Parties: H. BEHLEN & BROS., Inc., et al. v. MAYOR AND COUNCIL OF TOWN OF KEARNY. to . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 30

31 N.J.Super. 30

105 A.2d 894

H. BEHLEN & BROS., Inc., et al. v. MAYOR AND COUNCIL OF TOWN OF KEARNY.

Nos. A--180 to A--182.

Superior Court of New Jersey Appellate Division.

Argued May 10, 1954.

Decided June 4, 1954.

William W. Wimmer, North Arlington, argued the cause for plaintiffs-appellants (Wimmer & Chasnoff, North Arlington, attorneys).

Robert J. McCurrie, Newark, argued the cause for defendant-respondent.

Before Judges CLAPP, FREUND and SCHETTINO.

The opinion of the court was delivered by

SCHETTINO, J.S.C. (temporarily assigned).

These are three cases involving the validity of provisions of the zoning ordinance of the Town of Kearny. Plaintiffs are owners or occupants of property rezoned by amendment. The sole defendant is the municipality. These appeals are from judgments for defendant.

Prior to amendment an area of some 6,000 to 7,000 feet along the easterly side of Schuyler Avenue was zoned for light industry to a depth of some 500 feet, and beyond that depth for heavy industry. The amendment extended the light industry in depty by an additional 700 feet. By subsequent amendment the property of Joseph Davis Plastics Co. within that additional 700-feet extension was reclassified for heavy industry.

Plaintiffs challenge the treatment of the Davis property as discriminatory and focus a like attack upon the zoning for heavy industry of the property of E. I. DuPont De Numours Co. and of lands between Harrison Avenue and the Newark Branch of the Erir Railroad, which properties abut the light industry zone on the north and south respectively.

I

Plaintiffs seeks to set aside the amendatory ordinance as arbitrary insofar as their properties are concerned, and alternatively appear to seek to bring the three parcels referred to above into the classification of light industry, except a portion of the DuPont property which had been zoned for heavy industry prior to the amendment.

These alternative demands require separate consideration. Where a plaintiff's property is treated discriminatorily from other property in the area, the ordinance may be set aside as to plaintiff's property, but where plaintiff's property is properly zoned and the discrimination is confined to a relatively small area owned by another, the remedy is not to set aside the entire zone but rather to set aside the preferential treatment of the favored parcel or parcels. Cf. Town of Marblehead v. Rosethal, 316 Mass. 124, 126, 55 N.E.2d 13 (Sup.Jud.Ct.1944).

It cannot be assumed that the municipality would not have adopted the zone if it knew that its treatment of a small segment was invalid. Hence the inquiry must be: (1) whether the zoning can be said to be arbitrary from the standpoint of the treatment of plaintiffs' properties, and (2) whether, if that treatment is unassailable upon that inquiry, the entire rezoning is still so infected by preferential treatment of others as to justify condemnation of the entire scheme as violative of the statutory mandate for uniformity. R.S. 40:55--31, N.J.S.A.

The area rezoned for light industry beyond the mentioned depth of 500 feet is bounded on the north by the New York and Greenwood Lake Branch of the Erie Railroad and on the south by the Newark Branch of the Erie Railroad. The easterly line of the zone abuts the D.L. & W. Railroad. The area to the west of Schuyler is zoned essentially for residential use, and in fact the use thereof is predominantly so. The first 500 feet of depth on the easterly side of Schuyler Avenue has been zoned for light industry since 1922 and no attack is made upon the propriety of that continued treatment. With respect to the remaining depth of 700 feet rezoned for light industry, the record establishes a considered effort to protect the residential area from the well-known harmful influences and effects of heavy industry. The rezoning was the result of lengthy study by experts in planning and represents the judgment of the planning board and the governing body. Upon examination of the evidence we find no factual basis for judicial intervention. Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 94 A.2d 482 (1953); Fischer v. Township of Bedminster, 11 N.J. 194, 93 A.2d 378 (1952).

We turn, then, to the second aspect on this branch of the case, namely, whether there is demonstrated such preferential treatment of the properties of others as to invalidate the entire scheme.

The DuPont property and the lands between Harrison Avenue and the Newark Branch of the Erie Railroad are readily distinguishable from the rezoned area. The DuPont property lies to the north of the New York and Greenwood Lake Branch of the Erie Railroad. The testimony describes the property as some 40 to 50 feet below the level of Schuyler Avenue. There is a preponderance of industry and business west of Schuyler Avenue opposite the DuPont property. On the north this property abuts a cemetery. The legislative determination that this property justifiably should receive different classification as to use cannot be said to be arbitrary or capricious.

The area between Harrison Avenue and the Newark Branch of the Erie Railroad likewise appears reasonably distinguishable from the lands within the new light industry zone. On the north it adjoins the railroad and on the south it faces lands across Harrison Avenue devoted practically exclusively to heavy type industry and was always so zoned. The westerly side of this area is zoned for multi-family housing up to Schuyler Avenue and the use of the lands to the west of Schuyler Avenue (located in another municipality) is not disclosed by the record.

The Davis property might be said, on the record before us, to be treated specially. Although the frontage is some 20 to 25 feet below the level of Schuyler Avenue, yet the depth beyond the first 400 or so feet is apparently indistinguishable from the remaining lands on both sides of it in the zone. That depth is in fact used for heavy industry, but this circumstance, although entitling the owner to continue a nonconforming use, would not warrant the distinctly different right to be zoned for heavy industry. We do not question the status of affected property owners to challenge this treatment as a spot zoning. Borough of Cresskill v. Borough of Dumont, 15 N.J. 238, 104 A.2d 441 (1954); Conlon v. Board of Public Works, Paterson, 11 N.J. 363, 94 A.2d 660 (1963); Menges v. Township of Bernards, 4 N.J. 556, 73 A.2d 540 (1950). However, as indicated above, such discrimination, affecting perhaps some 500 feet out of a total of 6,000 to 7,000 feet, cannot vitiate the entire zoning plan.

Nor do we adjudge the invalidity of the treatment of the Davis property. The owner of that property is not a party to these proceedings and its rights cannot be effectively determined without an opportunity to be heard, when the essence of the attack is addressed to the reasonableness in fact of the ordinance in its application to the specific property, as distinguished from a challenge to a provision of an ordinance which is of general application within a zone.

Hence, the judgments below are affirmed insofar as they sustain the zoning but without prejudice to the right of any interested party to maintain proceedings addressed to the validity of the zoning as it relates to the Davis property. Our expressions, based as they are upon a record made without notice to the owner of the Davis property, are not intended to forecast the result of...