Home Fuel Oil Co. v. Borough of Glen Rock

• Decision Date: 09 June 1937
• Docket Number: No. 232.,232.
• Citation: 192 A. 516,118 N.J.Law 340
• Parties: HOME FUEL OIL CO. v. BOROUGH OF GLEN ROCK et al.
• Court: New Jersey Supreme Court

192 A. 516

118 N.J.Law 340

HOME FUEL OIL CO.

v. BOROUGH OF GLEN ROCK et al.

No. 232.

Supreme Court of New Jersey.

June 9, 1937.

Proceeding in certiorari by the Home Fuel Oil Company against the Borough of Glen Rock in the county of Bergen and John J. Hartnett, recorder, to review a judgment of conviction for a violation of a zoning ordinance of the borough.

Conviction affirmed and writ dismissed.

Argued January term, 1937, before BROGAN, C. J., and CASE and PERSKIE, JJ.

Doughty & Dwyer, of Ridgewood (Spaulding Frazer, of Newark, of counsel), for prosecutor. Thomas L. Zimmerman, Jr., of New York City, for defendants.

PERSKIE, Justice.

The writ of certiorari in this cause brings up for review a judgment, "with all things touching and concerning the same," in the recorder's court of the borough of Glen Rock, which resulted in the conviction and sentence of the prosecutor (a penalty of $50 was imposed) for having violated the zoning ordinance of the borough.

At the outset, let it be observed that, as in Dorsey Motors, Inc. v. Davis, 180 A. 396, 13 N.J.Misc. 620, at page 622, the writ here does not, in express terms, bring up the ordinance. Counsel for defendants, however, takes the position (second sentence of the first paragraph of his brief) that the writ "* * * of necessity brings up the validity of the Zoning ordinance." Be that as it may, the ordinance is, in fact, before us. Its applicable provisions are fully considered and argued by counsel for the respective parties. We shall treat these arguments accordingly.

Prosecutor was charged with having violated sections II, III, and IV, especially subdivision 26 of section IV, of the ordinance. These sections are as follows:

"Section II. Use Regulations Controlling Residential Zones: A fuel oil tank of not more than 2,000 gallons capacity, is permitted if placed not less than eighteen (18") inches underground outside of every building wall provided a permit is secured from the Building Inspector in the regular manner."

"Section III. Use Regulations Controlling Business Zones: * * * Fuel oil tanks for heating or industrial purposes if not more than 5000 gallons capacity each, may be installed, not less than two (2') feet underground in any business or industrial zone by obtaining a permit from the Building Inspector."

"Section IV. Use Regulations Controlling Industrial Zones: In an industrial zone, no building or premises shall be used, and no building shall be erected or altered which is arranged, intended or designed to be used for any of the following specified trades, industries or uses:

"(26) Petroleum, refining or storage of, in excess of 10,000 gallons, or Fuel Oil refining or storage in excess of 90,000 gallons, 15,000 gallons in any tank, which must be buried at least three feet underground if within 200 feet of any dwelling or building used as such."

More specifically the charge is that prosecutor violated the last-quoted provision of the ordinance in that it commenced the erection, and is maintaining a tank designed to store 360,000 gallons of fuel oil on its tract of land which is admittedly in the class B residential zone under the ordinance.

In the main, the facts are not in serious dispute. Prosecutor's tract, over 120,000 square feet, borders on the Erie Railroad. It was purchased by Joseph Marron in 1913 and used in the conducting of the coal distributing business until 1927. During that period Marron erected a number of coal pockets, a large concrete silo, and other buildings essential to the operation of the enterprise. The prosecutor corporation was formed in 1927 by Marron and his son for the purpose of engaging in the business of selling fuel oil in Glen Rock and surrounding cities. The tract of land which theretofore had been used solely for the coal enterprise was transferred to the new corporation. During 1927, six oil tanks were constructed on the tract. On application, the board of adjustment made an exception and permitted the prosecutor to erect four tanks with a capacity of 20,000 gallons each and two tanks with a capacity of 10,000 gallons each.

The demand for fuel oil increasing in the Glen Rock vicinity, prosecutor found its storage facilities inadequate. Consequently, on March 5, 1936, it made application to the building inspector to construct the tank in question. It is proposed to let the tank stand in a vertical position; the others were placed in a horizontal position. Informal plans and specifications (consisting of one sheet, Ex. P-3A) were submitted, and on March 5, 1936, the building department issued a permit to prosecutor (Ex. P-1) for the erection of the tank and for which the prosecutor paid a fee of $6. This permit contains the statement that the total cost of the tank is $1,600; and that it is "subject to all rules and regulations of the Building Code, Zoning Ordinance * * * of the Borough." While it is claimed that the plans and specifications aforesaid show the size, capacity, and dimensions of the tank, yet the permit does not appear to bear out that statement. It is silent on the gallon capacity of the tank. Thereafter prosecutor entered into a contract with a Chicago concern, which for about $3,000 agreed to construct the tank, and the construction work was begun about two months from the date of the permit. Two of the existing six tanks were removed and in their place the new tank was partially erected when on May 4, 1936, prosecutor was notified by the building inspector (Ex. P-3) that the permit had been erroneously granted, that it was revoked, and that since the structure was in violation of the zoning ordinance (subdivision 26 of section IV), it should be removed. The prosecutor ceased further work thereon, but refused to remove the partially completed tank.

Thereupon prosecutor took an appeal to the board of adjustment. A public hearing was had on September 17, 1936, at which hearing prosecutor appeared, participated, and was there represented by counsel. The board concluded that the permit was improperly granted (i. e., contrary to the provisions of the zoning ordinance, as aforesaid), and therefore properly revoked and denied prosecutor's request for a permit to erect the tank. That disposition stands unchallenged. Prosecutor took no proceeding to review the adverse action and the time limit for so doing has now long since expired. Section 9, subd. 4, P.L.1928, pp. 696, 702 (Comp.St.Supp.1930, § *136—4200 J (9), subd. 4). Notwithstanding prosecutor's failure to review the action of the board of adjustment, it now not only seeks to review the judgment of conviction by the recorder, but also seeks to review the action of both the building inspector in revoking the permit, the action of the board of adjustment in sustaining the revocation and refusing to grant it a permit, and further to review the reasonableness of the zoning ordinance as applied to it.

In support of its right to do so, prosecutor argues (1) that it is entitled to its permit because the tank is a mere continuance of a nonconforming use which it enjoyed at the time of the adoption of the zoning ordinance (section 11, P.L.1928, supra, p. 703, Comp.St.Supp.1930, § *136— 4200 J (11); (2) that to deprive it of the right to complete the tank and maintain it on its lands is to deprive it of the use of its property without due process of law in violation of the Federal and State constitutions; and (3) that because it had awarded the contract and incurred substantial expense without having practiced any fraud or misrepresentation in obtaining the permit, defendants were estopped to revoke the permit. Freeman v. Hague, 106 N.J.Law, 137, 147 A. 553. There is no merit to any of the points argued.

First. The right of a property owner to a continuance of a nonconforming use is well defined. The spirit of the act is to restrict rather than increase any nonconforming use. Conaway v. Atlantic City, 107 N.J.Law, 404, at page 407, 154 A. 6; DeVito v. Pearsall, 115 N.J.Law, 323, at page 325, 180 A. 202. "* * * the 'continuance of a nonconforming use' is a continuance of the same use and not of some other kind of use." Kensington Realty, etc., Corp. v. Jersey City, 118 N. J.Law, 114, at page 115, 191 A....