Moriarty v. Pozner

• Decision Date: 15 September 1955
• Docket Number: No. A--469,A--469
• Citation: 36 N.J.Super. 586,116 A.2d 704
• Parties: Daniel J. MORIARTY, Morris E. Schwartz and Morton Goldstein, Plaintiffs-Appellants, v. Jack POZNER, Sam Pozner, Board of Adjustment of the Township of North Bergen, and the Township Commission of the Township of North Bergen, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 586

36 N.J.Super. 586

116 A.2d 704

Daniel J. MORIARTY, Morris E. Schwartz and Morton Goldstein, Plaintiffs-Appellants, v. Jack POZNER, Sam Pozner, Board of Adjustment of the Township

of North Bergen, and the Township Commission of

the Township of North Bergen,

Defendants-Respondents.

No. A--469.

Superior Court of New Jersey.

Appellate Division.

Argued Sept. 7, 1955.

Decided Sept. 15, 1955.

George Heftler, Union City, argued the cause for plaintiffs-appellants (Platoff, Platoff & Heftler, Union City, attorneys; Jacob Green, Newark, on the brief).

Joseph C. Glavin, Jersey City, argued the cause for defendants-respondents Jack Pozner and Sam Pozner (Burke, Sheridan & Hourigan, Union City, attorneys).

Nicholas S. Schloeder, Union City, argued the cause for defendant-respondent Township of North Bergen.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiffs, three residents and taxpayers of North Bergen, instituted an action in the Law Division to set aside a zoning variance in favor of property of the defendants Pozner by resolution of the governing body of the township pursuant to recommendation by the board of adjustment. They appeal from a judgment in favor of the defendants.

The property which is the subject of the present litigation consists of a 17-acre tract of land known as 'Columbia Park' on the northwesterly side of Hudson Boulevard in North Bergen lying immediately northeasterly of the depressed highway approach to the Lincoln tunnel. The tract has a frontage of approximately 370 ft. on Hudson Boulevard, a rear dimension of 1,022 ft. and depths ranging from 628 ft. to 872 ft. It is bounded on the easterly side not only by Hudson Boulevard to the extent indicated but also by a very large tract of land known as Schutzen Park which extends some 400 ft. to residential lots fronting on the next northerly east-west street, 37th Street. Schutzen Park also adjoins the subject property on its northerly side. The ground at the rear or westerly boundary of the property in question takes a sharp physical drop of about 30 ft. into a paper street called Grand Avenue which is undeveloped and unopened, and beyond that to the west lies a large tract of vacant rocky and hilly land owned by the township. There is no street access whatever to the Locus in quo other than the frontage on Hudson Boulevard. The frontage is less than one-half of the length of the easterly sideline of the property.

The entire tract here in question, with the exception of the frontage on Hudson Boulevard to a depth of 100 ft., is zoned as a second residential zone or district, which permits dwellings of any type but prohibits business uses of any kind. The zoning map of the municipality indicates that Hudson Boulevard at the point in question and for a considerable distance southerly and northerly of the subject tract constitutes the easterly boundary line of the municipality. On the other side of the Boulevard at the point in question lies Union City, and, further north, the town of West New York. North Bergen flares out easterly to the Hudson River north of 70th Street to form the base of a reverse 'L'.

Examination of the zoning map of the municipality, reflecting the 1934 zoning ordinance, indicates that Hudson Boulevard through almost all of its length in North Bergen is 'strip-zoned' for business to a depth of 100 ft. and that the land west of the 100 ft. is generally zoned 'second residential.' There are isolated portions of the municipality in which there are business zones to a depth of more than 100 ft. but the overwhelming proportion of business zoning in the municipality is 100-ft. strip-zoning of the kind mentioned, on Hudson Boulevard and on each of the several other main business thoroughfares of the municipality.

The portion of the subject property situated on Hudson Boulevard to a depth of about 100 ft. has for some time been occupied as a used car lot. Westerly thereof, and dominating the southern half of the tract, is a large, poorly maintained pavilion structure rented for meetings and amusements. In former years there was a general amusement park on the property. Part of the adjacent Schutzen Park property is devoted to business and commercial uses of various kinds. Across Hudson Boulevard in Union City there is a Sears Roebuck Department Store and a large parking area accessory thereto. All of the Hudson Boulevard frontage in Union City across the street is zoned and predominantly devoted to commercial or industrial uses. There is some scattered residential development north of Schutzen Park on 37th Street, on the easterly side of Hudson Boulevard north of the intersection thereof with Bergen Turnpike, and on the nearest streets north of the property. Most of the residences lie several hundred feet or more from the property.

Most of the witnesses agreed that the general area in which the property lay is mixed residential and commercial, and, if the Union City area is taken into account, the overwhelmingly predominant use of the neighborhood is commercial.

The variance here requested was for use of the portion of the tract zoned residential, together with the business zone area lying on Hudson Boulevard, for the construction of a large integrated shopping center with extensive accessory automobile parking areas. The primary basis for the application is the lack of accessibility to the tract other than through the frontage on Hudson Boulevard and the unsuitability of residential use of the area zoned therefor whether or not the owners retained their right to use the Hudson Boulevard frontage for business purposes, but particularly if they did. The evidence taken before the Board clearly establishes that use of the part of the tract zoned as residential for such purposes could be accomplished only by cutting across the Hudson Boulevard frontage, zoned commercial and described by an expert witness as very valuable commercial property, for ingress and egress.

Real estate, architectural and planning experts testified on behalf of the owner of the property that the physical setting of the property described and the predominantly commercial character of the neighborhood led to the conclusion that a commercial use of the nature here proposed represented the highest and best use of the property in an economic sense. The planning expert stated that the construction of a residential project at the rear of the tract through a street to be opened from Hudson Boulevard would not constitute good planning. The view was expressed that a multi-unit housing development of the size appropriate to this tract would require more access, on considerations of safety, than the single Hudson Boulevard exit presently available. The planning expert testified that the best interests of the municipality as well as considerations material to the most appropriate use of the particular tract would be served by the contemplated project. He said there would be no impairment of the value of nearby residential property since traffic engendered would be self-contained. The defendants' realty expert said the shopping center would enhance surrounding land values.

Both of these experts were of the view that one reason for the 100 ft. strip-commercial zoning pervading this ordinance was that the present-day concept of an integrated shopping-parking center was new or unknown in 1934, when the ordinance was adopted. They felt that the proposed variance on the subject tract would, to that extent, correct the oversight.

An owner of the property testified that for years he has been unsuccessful in attempts to find a developer of the property for housing purposes although he has listed it with some of the leading real estate brokers in the east.

In opposition to the application plaintiffs submitted the opinion testimony of an architect that the size and topography of the land in question are well suited for a multi-story apartment project; that such improvement of the tract would blend with commercial development of the Hudson Boulevard frontage, subject to construction of an access road. The objectors' principal reliance before the zoning board was upon the testimony of Herbert H. Smith, a planning consultant of unquestionably high qualifications. It was his opinion that the neighborhood is one of mixed use containing considerable residential development, including a large apartment development a few blocks south, off the Boulevard; that close transition from large apartments to commercial areas is common in the metropolitan area; and that the subject tract was well adapted for apartment house use from several standpoints. He stated the size of the tract was such that the proposed change of use would be alien to the intent of the ordinance and the statute and would be harmful to 'what comprehensive (zoning) picture does exist', although he candidly volunteered that: 'from my investigation I can't find any effort to develop a comprehensive zoning plan in this township.' He also testified that the traffic problem on the Boulevard would be aggravated, not helped, by the variance proposed.

On these and other proofs the zoning board found the following favorable 'reasons' for recommending the variance:

'1. By reason of the shape of the premises in question, it being only 370 feet in width on the Hudson Boulevard, while it is 1,022 feet on the rear and irregular in depth ranging for 628 feet to 872 feet, and by reason of the fact that the only means of ingress and egress to the large area of the property zoned for residential purposes is over or through the Boulevard frontage, which is zoned for business to a depth of 100 feet, it is...