Schantz v. Rachlin

• Decision Date: 05 June 1968
• Docket Number: No. C--1851,C--1851
• Parties: Norman SCHANTZ and Sandra Schantz, Plaintiffs, John T. Brockwell and Abbie Brockwell, Plaintiffs-Intervenors, v. Edgar L. RACHLIN, Defendant.
• Court: New Jersey Superior Court

Page 334

101 N.J.Super. 334

244 A.2d 328

Norman SCHANTZ and Sandra Schantz, Plaintiffs John T. Brockwell and Abbie Brockwell, Plaintiffs-Intervenors, v. Edgar L. RACHLIN, Defendant.

No. C--1851.

Superior Court of New Jersey Chancery Division.

Argued May 3, 1968.

Submitted May 16, 1968.

Decided June 5, 1968.

Philip J. Blanda, Jr., Hazlet, for plaintiffs (Blanda & Blanda, Hazlet, attorneys).

Albert G. Besser, Newark, for defendant (Hannoch, Weisman, Stern & Besser, Newark, attorneys).

LANE, J.S.C.

This action is before the court on a motion by the defendant for summary judgment against the plaintiffs and the plaintiffs-intervenors.

The plaintiffs, Norman and Sandra Schantz, seek to restrain the defendant from constructing and using a landing strip on his lands and to compel him to demolish the landing strip. It alleges that commencing in the fall of 1967, the defendant constructed a landing strip on his land; that the use of the landing strip is in violation of the zoning ordinance of the Township of Holmdel; that the plaintiffs' child attends a school which is directly in the landing and take-off pattern of airplanes using the landing strip; and that the use of the landing strip will do 'irreparable harm and damage to the plaintiffs and to their infant son * * * and further will greatly decrease and diminish in value plaintiffs' property.' Paragraph 8 of the complaint states:

'As a result of the use and intended use to which the defendant has put his land, namely the construction of the air strip and the intention as announced of landing and taking off airplanes and using the premises as an airport, the life, limb, and safety of Jeffry Schantz, the infant child of the plaintiffs, has been unnecessarily placed in jeopardy and in danger by virtue of there now being created unlawful and unnecessary air traffic at low altitudes over the school attended by the plaintiffs' infant child as aforesaid. As a further result unnecessary and unlawful air traffic will be created over the general vicinity of the lands and premises owned by the plaintiffs which are also in the general area and vicinity of the lands and premises of the defendant, being approximately one mile from the defendant's air strip and airport. The unlawful use by the defendant as aforesaid creates a hazard and nuisance in and about the general land area of the aforesaid two elementary schools of the Township of Holmdel and of the entire residential zone in which the aforesaid air strip and airport of the defendant is located. The acts of the defendant constitute an unlawful invasion of the property rights of the plaintiffs.'

The plaintiffs-intervenors, John and Abbie Brockwell, allege that the rear of their property abuts the defendant's property, being approximately 700 feet from the airstrip. They adopt the allegations of the complaint and seek the same relief. Heretofore, the Court has denied two applications for preliminary injunctions. There are numerous affidavits before the Court as well as the depositions of the plaintiffs and the defendant.

The defendant is the owner of premises known as Hop Brook Farm on Holmdel Road in the R--40A zone of the Township of Holmdel. The property is a farm consisting of approximately 135 acres of which 100 acres are cultivated with crops. The remaining 35 acres are used for livestock, a house and outbuildings and the turf landing strip that is the subject matter of this suit. The strip was installed by cultivation and seeding in June 1967. It is a little more than 2,200 feet long with varying widths of between 150 feet and 400 feet. It runs roughly in an east-west direction bisecting the property and is between 700 and 750 feet from the north and from the south property lines. The landing strip is not lighted and is intended solely for daytime use pursuant to visual flight rules. Photographs before the Court show that the construction of the strip has not changed the appearance of the defendant's property as a farm. No buildings have been constructed in connection with the strip, and there is no evidence of any intention on the part of the defendant to do more than land and take off from his property. If the plane is stored overnight, it will just be tied down. The photographs show that there are no habitations immediately east or west of the landing strip.

The landing strip has been licensed by the Division of Aeronautics, Department of Transportation, State of New Jersey. The license is limited as follows:

'This is for personal use with the following Aircraft only: Beechcraft C--33A N--5649S'

In an affidavit filed in this matter Francis R. Gerard, Director, Division of Aeronautics, states:

'In addition, I recently made my own inspection of the landing strip in question on Hop Brook Farm pursuant to the request of officials of Holmdel Township. Neither I nor my inspectors found any reason for concern nor any hazard or unsafe conditions as to people and property in the vicinity of the landing strip. I feel that the landing strip should not cause any annoyance to anyone, and of the 80 such private landing strips in this state, it is one of the safest of them.'

Mr. Rachlin was licensed as a private pilot by the Federal Aviation Agency about three years ago. He has more than 650 hours of private flying experience. It is his stated intention to use the landing strip solely for his personal use and pleasure. In connection with the issuance of the license by the Division of Aeronautics, the defendant was required to demonstrate his flying proficiency and the capabilities of the aircraft to a State Inspector.

The Beechcraft referred to in the license is a propeller-driven single engine, single-wing aircraft. According to the manufacturer's specifications, when the aircraft is fully loaded the take-off ground run is 880 feet, with a required total take-off run of 1,225 feet in order to clear a 50-foot obstacle. The landing ground run is 625 feet with a required total landing ground run of 1,150 feet needed to land over a 50-foot obstacle.

The main thrust of the plaintiffs and plaintiffs-intervenors is that the installation and maintenance of the landing strip violates the zoning ordinance of Holmdel Township.

Plaintiffs and plaintiffs-intervenors have moved to file an amended complaint adding a third count alleging that the use of the landing strip is a violation of the zoning ordinance and that they, under the provisions of the zoning ordinance, are entitled to bring this action to enjoin such violation. The Court is advised that the defendant will consent to the filing of such amended complaint. In view of the disposition to be made upon this motion, it is unnecessary to decide whether in fact the plaintiffs or plaintiffs-intervenors have standing to seek enforcement of the zoning ordinance. See Cahill v. Heckel, 87 N.J.Super. 201, 204--205, 208 A.2d 651 (Ch.Div.1965).

Article III of the zoning ordinance provides in part as follows:

'3.1 Except as hereinafter provided:

3.1.1 No land shall hereafter be used or occupied and no building or part thereof shall hereafter be used, occupied, erected, moved or altered unless in conformity with the regulations hereinafter specified for the district in which it is located.'

The zoning ordinance provides for the following uses by right in the R--40A zone:

'Following are the uses allowed * * * for residence districts.

4.1 Residence R--40A (1600), Residence and Agricultural District

4.1.1 Uses allowed by right

a. One-family detached private dwelling with accessory buildings.

b. A one-family detached private dwelling containing the professional office of its resident owner or lessee with accessory buildings.

3. Churches, public and private schools, libraries, nursing homes, hospitals and accessory buildings, firehouses, historical museums and private golf courses. No private golf course shall be permitted unless the property constituting said course shall consist of at least 150 acres of land.

d. Farms in general, including truck farms, dairies, nurseries and fruit farms. Accessory buildings: incident to farms, such as tenant houses, greenhouses, buildings for housing seasonal workers for the farmer's own use, barns, packing, grading and storage buildings and buildings for the keeping of poultry and livestock, garage, or garages for the keeping of equipment and trucks used in farm operations. This section shall be construed to include the business of selling farm equipment, farm implements, farm machinery, fertilizers, and seeds of all kinds, at wholesale or retail, or both but only when said business is conducted by the owner or owners of the farm.

e. Buildings, structures and premises for use and occupancy by the Township for any municipal purposes.'

In Article IX 'accessory' is defined as follows:

'The term applied to a building or use which is clearly incidental or subordinate to the principal building or use and located on the same lot with such principal building or use. Any accessory building attached to a principal building is deemed to be a part of such principal building in applying the Bulk Regulations to such accessory building.'

Section 4.1.1 sets forth a number of uses allowed by right in the R--40A district. It is apparent that the governing body did not intend to limit the district strictly to residential uses. For example, a property owner is permitted to carry on certain businesses in this zone. Section 4.1.1d authorizes the sale of farm equipment, farm implements, farm machinery, fertilizers and seed where the business is conducted by the owner of a farm. Although the ordinance in Section 4 refers only to accessory buildings, it must be implied that accessory uses are permitted. Borough of Northvale v. Blundo, 85 N.J.Super. 56, 59, 203 A.2d 721 (App.Div.1964).

Is the maintenance of the landing strip on the defendant's property for his personal use accessory to its use as a residence and farm and therefore not prohibited under the...