Houdaille Const. Materials, Inc. v. Board of Adjustment of Tewksbury Tp.

• Decision Date: 07 October 1966
• Docket Number: No. A--724,A--724
• Citation: 92 N.J.Super. 293,223 A.2d 210
• Parties: HOUDAILLE CONSTRUCTION MATERIALS, INC., a New Jersey corporation, and Allied Chemical Corporation, a New York Corporation, Plaintiffs-Respondents, v. BOARD OF ADJUSTMENT OF TEWKSBURY TOWNSHIP, Defendant-Appellant, and Joseph Blair, Building Inspector of Tewksbury Township, and Township Committeeof Tewksbury Township, a municipal corporation, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 293

92 N.J.Super. 293

223 A.2d 210

HOUDAILLE CONSTRUCTION MATERIALS, INC., a New Jersey corporation, and Allied Chemical Corporation, a New York Corporation, Plaintiffs-Respondents, v. BOARD OF ADJUSTMENT OF TEWKSBURY TOWNSHIP, Defendant-Appellant and Joseph Blair, Building Inspector of Tewksbury Township, and Township Committeeof Tewksbury Township, a municipal corporation, Defendants.

No. A--724.

Superior Court of New Jersey Appellate Division.

Argued Sept. 19, 1966.

Decided Oct. 7, 1966.

Richard H. Herold, Somerville, for appellant (Wharton, Stewart & Davis, Somerville, attorneys).

Clifford W. Starrett, Morristown, for respondents (Schenck, Price, Smith & King, Morristown, attorneys).

Before Judges CONFORD, FOLEY and LEONARD.

The opinion of the court was delivered by

CONFORD, S.J.A.D.

The Tewksbury Board of Adjustment appeals from a decision of the Law Division which vacated certain conditions which the board had imposed in granting an application of the plaintiffs for a special use permit under the local zoning ordinance for the construction and operation of a bituminous concrete plant. The Law Division held the plaintiff were entitled to the permit free from the conditions, the latter (except for four not challenged in the action) being characterized by the court as arbitrary and unreasonable.

The present controversy concerns 6.42 acres of a much larger tract of land where for a long time plaintiff Houdaille has been operating a stone quarry. The concrete plant was to be operated by plaintiff Allied under a five-year lease from Houdaille of the smaller tract. The plant is essentially mobile and is to be transferred from another operating location out of the State.

The property in question is in a Mining (M) District of the municipal zoning ordinance. At the time of the application to the board the ordinance provided in section 4:6--2 that in an M district certain uses would be permissible, but only as 'a special permit use,' one being (b):

'Buildings, machinery and other facilities for the manufacture of prestressed concrete, bituminous concrete, dry concrete mixes and other concrete products, provided that:

i. A buffer strip, not less than five hundred feet in width, shall separate such buildings and uses from any agricultural or residential use within the Mining District, or from the boundary line of any district abutting the Mining District, whichever is closer to such buildings and uses;

ii. All the applicable performance standards of Article V and the Appendix shall be complied with fully as a condition to the continuance of such operations.'

Article V of the ordinance requires that every industrial or mining use or one conducted under a special use permit conform to the 'applicable performance standards' set forth in the Appendix. The latter contain detailed criteria governing 'Fire and Explosion Hazards; Fume and Gases; Disposition of Liquid of Solid Wastes; Smoke; Fly Ash; Dust; Noise; Vibration; Glare; Heat; and Radiation.'

After an extended series of hearings by the board, including expression of considerable local opposition based on the anticipated failure of plaintiffs to comply with the performance standards and fear of effect of the new operation on local health and welfare, the board rendered a 3--2 decision that the 'applicant has shown that it can comply with the ordinance standards specified' in the ordinance and that the permit should be granted, subject however to 14 stated conditions, 10 of which have been contested by plaintiffs below and here. The disputed conditions are as follows:

'(1) That the applicant and Barrett Division of Allied Chemical Company accept this permit within 60 days from the date hereof, and agree to comply with said restrictions and limitations.

(2) That said plant be operated no more than 200 days per year, five days per week; that no operation on Saturday and Sundays (sic).

(3) That the operation of said plant shall be only during daylight between the hours of eight and five p.m.

(5) That the tests shall be made * * * no more than twice a year by a laboratory selected and retained by the Township to show complete compliance with the performance standards of said ordinance and these restrictions * * *. The cost of said test shall be paid by the applicant.

(6) That in case of any complaints by the Township or the State of New Jersey of breach of the performance standards of this ordinance, tests shall be made as outlined in 5 above for the account of the applicant to determine compliance.

(8) That applicant shall use only Rockaway Road from County Road 523 as access to the plant, and said Rockaway Road shall be maintained by the Township, and the cost of said maintenance shall be paid by the applicant.

(9) The applicant shall use trucks either in or out of said plant having a gross weight of not more than 35 tons, and no more than 40 trucks per day in either direction shall visit said plant.

(12) This permit shall be for the time of the lease of 5 years.

(13) If it is necessary for the Township to take action, judicial or otherwise, to enforce this grant, the applicant shall pay all costs of the Township in such action.

(14) In case of any breach of this permit and the specifications and such breach is not cured within 30 days of notification of such breach, the Township may cancel this permit and applicant shall cease all operation.'

Defendants argue that all of these conditions are reasonable and valid, but that if any are not, the court should either set aside the action of the board in its entirety or remand the matter for further proceedings by the board. Plaintiffs contend that under the peculiar provisions of this particular ordinance the board had no jurisdiction to impose conditions at all when granting a special permit use; alternatively, that the conditions were either 'ultra vires or had no relation to zoning'; and that judicial proscription of the conditions does not warrant remand of the matter to the board as it has already determined that the proposed operation can comply with the legislated performance standards and should not be allowed now to deny a permit it has already properly determined to be issuable.

I

We consider first whether the ordinance itself forbids conditions to be attached to a grant of a special use permit. Preliminarily, plaintiffs do not contend that boards of adjustment are basically without power to impose special conditions in granting or recommending variances or special uses under N.J.S.A. 40:55--39. The contrary is generally accepted. Borough of North Plainfield v. Perone, 54 N.J.Super. 1, 148 A.2d 50 (App.Div.1959), certification denied 29 N.J. 507, 150 A.2d 292 (1959); Tullo v. Millburn Tp., 54 N.J.Super. 483, 490--491, 149 A.2d 620 (App.Div.1959). 8A McQuillin, Municipal Corporations (3d ed. rev. vol. 1965), § 25.271, pp. 245--246.

In the present application, plaintiffs point to section 7:8--2 of the ordinance, which, in dealing with the powers of the board of adjustment in relation to special permit uses, states that if after hearing the board 'finds * * * that the proposed special use meets the requirements of this ordinance the board shall cause an appropriate special use permit to be issued by the zoning officer.' They contrast that language with section 7:7 of the ordinance, dealing with 'Special Exceptions' (as distinguished from 'Special Use. Permits') covering five categories of cases, generally in relation to nonconforming uses, where action by the board is expressly made subject to a determination that the exception 'will not impair the integrity of the comprehensive zoning plan' (7:7--1) or involve 'substantial detriment to the public good,' etc., and the board is permitted to 'impose appropriate conditions and safeguards for the purpose of maintaining the integrity of the comprehensive plan' (7:7--2).

By comparing the respective sets of ordiance provisions applicable to special permit uses and special exceptions, plaintiffs purport to find municipal legislative intent to make the former mandatory upon no more than a demonstration that applicant complies with the particular prerequisities specified therefor, as distinguished from special exceptions which are issuable only if the board of adjustment finds absence of 'substantial detriment to the public good' and of impairment of the integrity of the zone plan, etc., and in respect of which the board is expressly allowed to fix appropriate safeguards and conditions.

We are not persuaded that, whatever may have been the actual intention of the framers of the ordinance, the municipality could curtail the power of the board of adjustment to condition the exercise of its power to pass upon applications for special permit uses, within N.J.S.A. 40:55--39(b), by proper and appropriate...