Jones v. Zoning Bd. of Adjustment of Long Beach Tp.

• Decision Date: 14 October 1954
• Docket Number: No. A--230,A--230
• Citation: 32 N.J.Super. 397,108 A.2d 498
• Parties: Walter H. JONES and Alice Henshaw Jones, plaintiffs-appellants, v. The ZONING BOARD OF ADJUSTMENT of the TOWNSHIP OF LONG BEACH, the Board of Commissioners of the Township of Long Beach, Julia Edna Frazier, Claude W. Taylor, Edna M. Taylor, S. Robert Laslocky, Amelia A. Laslocky, defendants-respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 397

32 N.J.Super. 397

108 A.2d 498

Walter H. JONES and Alice Henshaw Jones, plaintiffs-appellants, v. The ZONING BOARD OF ADJUSTMENT of the TOWNSHIP OF LONG BEACH, the Board of Commissioners of the Township of Long Beach, Julia Edna Frazier, Claude W. Taylor, Edna M. Taylor S. Robert Laslocky, Amelia A. Laslocky, defendants-respondents.

No. A--230.

Superior Court of New Jersey Appellate Division.

Argued Oct. 4, 1954.

Decided Oct. 14, 1954.

Irving C. Evers, Hackensack, argued the cause for the plaintiffs-appellants (Walter H. Jones, Hackensack, attorney).

Henry H. Wiley, Toms River, argued the cause for the defendants-respondents, The Zoning Board of Adjustment of the Township of Long Beach, and the Board of Commissioners of the Township of Long Beach (Berry, Whitson & Berry, Toms River, attorneys).

Louis B. LeDuc, Camden, argued the cause for the defendants-respondents S. Robert Laslocky and Amelia A. Laslocky.

Before Judges EASTWOOD, GOLDMANN and SCHETTINO.

The opinion of the court was delivered by

EASTWOOD, S.J.A.D.

Our inquiry is directed to ascertaining whether in the light of the purposes of the Zoning Act, the action of the Township of Long Beach in rezoning a certain portion of a residential zone known as the 'Loveladies' section of the township into a business zone represents sound judgment based on the policy of the statute 'to advance the common good and welfare' or whether it was arbitrary and unreasonable, thereby constituting 'spot zoning,' merely furthering purely private interests.

The respondents, Laslockys, contend that the appellants are guilty of laches '* * * and further that by their failure to protest a supposed invasion of their rights, thereby inducing the continued investment of money by defendants in the construction of the milk bar and its subsequent operation, they have estopped themselves from claiming the relief sought.' However, our determination of the question hereinabove posed makes it unnecessary for us to consider the issues of laches and estoppel.

The plaintiffs, owners of a parcel of unimproved ground opposite the business zone, instituted their action in the Law Division to set aside the amendment to the zoning ordinance as constituting spot zoning, as effectuating a variance by bypassing the township zoning board of adjustment and charging that the amended ordinance was, therefore, arbitrary, capricious, unreasonable, contrary to law and void.

The trial court held, 28 N.J.Super. 483, 101 A.2d 102, that by reason of their delay in the institution of the action, the plaintiffs were not entitled to the relief sought, on the grounds of laches and estoppel. The trial court made no determination with respect to the plaintiffs' contention that the ordinance was invalid.

Long Beach Township, in Ocean County, is situate on Long Beach Island which is a rather long, narrow island, extending from Barnegat Inlet to Beach Haven Inlet, bounded on the east by the Atlantic Ocean and on the west by Barnegat Bay. The township has an unusual situation in that it is composed of six separate sections, each of which is separated from the next by another municipality. Each section has its own name or designation and the one with which this appeal is primarily concerned is the 'Loveladies' section, consisting of approximately 1,000 acres in a natural or semi-wild state, about two miles in length, and is bounded on the north by the Borough of Barnegat Light and on the south by the Borough of Harvey Cedars. The only section that does not presently have a business zone is North Beach, between the Borough of Surf City and Harvey Cedars, approximately one mile long.

The original township zoning ordinance did not provide for a business district in the 'Loveladies' area. Reaching the conclusion that provision should be made for a business district in that section, the township committee adopted an amendment on May 19, 1950, providing therefor. The business zone created by the amendment consisted of 1,250 feet in length facing on the northwesterly side of Long Beach Boulevard with a depth perpendicular thereto of 400 feet, comprising a total of 11.2 acres. The street on which the business zone faces, known as Long Beach Boulevard, is 100 feet in width and for practical purposes is the only business artery on the island. The Laslockys commenced the construction of a milk bar in the business zone subsequent to the adoption of the amendment. It was completed in August 1950.

At the time of the adoption of the amendment there were only 34 homes in this entire 'Loveladies' area and there were no homes within a half-mile of the business zone. There was testimony that the governing body of the township had been considering the zoning problem for about two years before the adoption of the amendment and decided that a business zone should be made for the 'Loveladies' section before any more homes were built. In connection with its consideration of the proposed amendment, the governing body discussed it with the civic organization of the 'Loveladies' section and the attorney and president thereof indicated its approval and, at the time of the adoption, no one voiced any objection thereto. The record discloses that subsequent to the adoption of the ordinance and up to the date of the trial on October 8, 1953, 31 additional homes had been built; that since 1950 there has been more development than all that preceded that date; that it was anticipated there may be 200 more homes by the summer of 1954, and that this section of the township has a potential of about 800 homes.

In the Borough of Barnegat Light, which is between a mile and a half and two miles north of the center of the 'Loveladies' section, there is a business district, consisting of a community grocery, store, bars and a service station. The business district in Harvey Cedars is largely undeveloped, being a mile and fourtenths to a mile and eight-tenths from the center of the 'Loveladies' area, and consists of a general store, post office, service station, bars and liquor stores.

The plaintiff, Walter H. Jones, testified that the commercial facilities in Barnegat Light were quite ample for the owners in that area; that the area had been developed simply and strictly for those people who wanted to maintain the natural beauty and at the same time put up a residential accommodation of a high type; that he had seen the area grow and the area itself, being residential, was not being served by the activity of the Laslocky milk bar, serving only transient travel; that the entire district is so set up in its present physical use that the residents use cars almost constantly throughout the island; that within a half-mile walking distance of the Laslocky installation there were only 30 residents at that time; that the natural beauty and so-called wild state of the 'Loveladies' section was always intended to and should be preserved and limited strictly to residential uses; that his property was littered with wrappings from items sold from the Laslocky establishment; that milk trucks operate from the Laslocky property, and at night the milk bar is lit up creating a different effect than would a residence in the area.

The plaintiffs' expert, Mr. Herbert Smith, testified the 90% Of the area in which the plaintiffs' property is located is in its natural state, pointing out that there was no planning board in the township and further, that 'The...