Lamb v. A. D. McKee, Inc., No. 236.

CourtUnited States State Supreme Court (New Jersey)
Writing for the CourtPER CURIAM
Citation160 A. 563
PartiesLAMB, Mayor v. A. D. McKEE, Inc., et al.
Docket NumberNo. 236.
Decision Date06 May 1932
160 A. 563

LAMB, Mayor
v.
A. D. McKEE, Inc., et al.

No. 236.

Supreme Court of New Jersey.

May 6, 1932.


160 A. 564

Proceeding by Bernard Lamb, Mayor of the Borough of Ho-Ho-Kus, against A. D. McKee, Inc., and others, for violations of a zoning ordinance: To review orders of the court of common pleas setting aside convictions by the recorder of the borough, plaintiff brings certiorari.

Orders affirmed, and writ dismissed.

Argued May term, 1931, before TRENCHARD and DONGES, JJ.

J. W. & E. A. De Yoe, of Paterson, for prosecutor.

De Turck & West, of Hackensack, for defendants.

PER CURIAM.

This writ brings up orders of the Bergen county court of common pleas setting aside four convictions of the defendant A. D. McKee, Inc., for violations of the zoning ordinance of the borough of Ho-Ho-Kus.

The zoning ordinance was passed June 6, 1923, and the enabling act was passed in 1928, P. L. p. 696, c. 274 (Comp. St. Supp. § *136—4200J(1) et seq.). The defendant was the owner of a ten-acre lot of land in the borough, acquired in 1927. From this tract it was excavating sand and gravel, although only one acre was being worked at that time. After the enabling act was passed, the defendant continued to make excavations from other portions of the tract, and complaints were made for the violation of the ordinance. The defendant company was convicted of nonconforming use of the land, nonconforming use of the building, use of the land without certificate of occupancy, and use of the building without certificate of occupancy.

Upon appeal the convictions by the recorder of the borough were reversed by the court of common pleas, and the borough obtained this writ.

The situation presented is very similar to that passed upon by the Court of Errors and Appeals in Frank J. Durkin Lumber Co. v. Fitzsimmons, 106 N. J. Law, 183, 147 A. 555, for the ordinance here in question is subject to the same infirmity as that there in question, and that case held that a nonconforming use that was lawful when Instituted, and actively and constantly maintained, was entitled to be continued under the act of 1928.

The prosecutor of this writ admits that as to the one acre of the lot used before the passage of the enabling act of 1928, the defendant is protected by the rule laid down in Frank J. Durkin Lumber Co. v. Fitzsimmons. It, however, attempts to differentiate that case from the instant one by saying that the excavation from parts of the remaining nine acres was a new...

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23 practice notes
  • Hansen Brothers Enterprises, Inc. v. Board of Supervisors, No. S044011
    • United States
    • United States State Supreme Court (California)
    • January 8, 1996
    ...Gregg, 90 Cal.App.2d 348, 203 P.2d 37; Borough of Cheswick v. Bechman, 352 Pa. 79 [42 A.2d 60]; Lamb v. A.D. McKee, Inc. 10 N.J.Misc. 649 [160 A. 563]; Village of Terrace Park v. Errett, 12 F.2d 240, 243.) An entire tract is generally regarded as within the exemption of an existing nonconfo......
  • Weber v. Pieretti, No. C--1739
    • United States
    • Superior Court of New Jersey
    • January 22, 1962
    ...constitute unlawful extensions of a nonconforming use. Moore v. Bridgewater Tp., supra, and Lamb v. A. D. McKee, Inc., 10 N.J.Misc. 649, 160 A. 563 (Sup.Ct.1932) relied upon by defendants, are clearly distinguishable. Those cases concerned the removal from the land of a natural resource or ......
  • Township of Fairfield v. Likanchuk's, Inc.
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 22, 1994
    ...Moore v. Bridgewater Tp., 69 N.J.Super. 1, 15, 173 A.2d 430 (App.Div.1961); Lamb v. A.D. McKee, Inc., 10 N.J.Misc. 649, 650, 160 A. 563 (Sup.Ct.1932); Arden H. Rathkopf and Daren A. Rathkopf, The Law of Zoning and Planning, § 51.07 at 110 (1984). In Moore, we stated the rationale for the &q......
  • Moore v. Bridgewater Tp., No. A--90
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 8, 1961
    ...that we note at this point that the court in Martin and in Gross made mention of the case of Lamb v. A. D. McKee, Inc., 10 N.J.Misc. 649, 160 A. 563 (Sup.Ct.1932). The court distinguished Lamb from its cases and, in Martin, the court quoted from Burmore Co. v. Smith, 124 N.J.L. 541, 12 A.2d......
  • Request a trial to view additional results
23 cases
  • Hansen Brothers Enterprises, Inc. v. Board of Supervisors, No. S044011
    • United States
    • United States State Supreme Court (California)
    • January 8, 1996
    ...Gregg, 90 Cal.App.2d 348, 203 P.2d 37; Borough of Cheswick v. Bechman, 352 Pa. 79 [42 A.2d 60]; Lamb v. A.D. McKee, Inc. 10 N.J.Misc. 649 [160 A. 563]; Village of Terrace Park v. Errett, 12 F.2d 240, 243.) An entire tract is generally regarded as within the exemption of an existing nonconfo......
  • Weber v. Pieretti, No. C--1739
    • United States
    • Superior Court of New Jersey
    • January 22, 1962
    ...constitute unlawful extensions of a nonconforming use. Moore v. Bridgewater Tp., supra, and Lamb v. A. D. McKee, Inc., 10 N.J.Misc. 649, 160 A. 563 (Sup.Ct.1932) relied upon by defendants, are clearly distinguishable. Those cases concerned the removal from the land of a natural resource or ......
  • Township of Fairfield v. Likanchuk's, Inc.
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 22, 1994
    ...Moore v. Bridgewater Tp., 69 N.J.Super. 1, 15, 173 A.2d 430 (App.Div.1961); Lamb v. A.D. McKee, Inc., 10 N.J.Misc. 649, 650, 160 A. 563 (Sup.Ct.1932); Arden H. Rathkopf and Daren A. Rathkopf, The Law of Zoning and Planning, § 51.07 at 110 (1984). In Moore, we stated the rationale for the "d......
  • Moore v. Bridgewater Tp., No. A--90
    • United States
    • New Jersey Superior Court – Appellate Division
    • June 8, 1961
    ...that we note at this point that the court in Martin and in Gross made mention of the case of Lamb v. A. D. McKee, Inc., 10 N.J.Misc. 649, 160 A. 563 (Sup.Ct.1932). The court distinguished Lamb from its cases and, in Martin, the court quoted from Burmore Co. v. Smith, 124 N.J.L. 541, 12 A.2d......
  • Request a trial to view additional results

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