Struyk v. Samuel Braen's Sons

• Decision Date: 19 December 1951
• Docket Number: No. A--482,A--482
• Citation: 85 A.2d 279,17 N.J.Super. 1
• Parties: STRUYK v. SAMUEL BRAEN'S SONS.
• Court: New Jersey Superior Court — Appellate Division

Page 1

17 N.J.Super. 1

85 A.2d 279

STRUYK v. SAMUEL BRAEN'S SONS.

No. A--482.

Superior Court of New Jersey

Appellate Division.

Argued Dec. 10, 1951.

Decided Dec. 19, 1951.

Paul Rittenberg, Paterson, argued the cause for appellant (Peter Hofstra, Paterson, attorney).

John W. Hand, Paterson, argued the cause for respondent (Hugh C. Spernow, Paterson, attorney).

Before Judges McGEEHAN, JAYNE and WM. J. BRENNAN, Jr.

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.A.D.

This appeal is from a judgment in the Passaic County Court setting aside defendant's conviction for violation of the zoning ordinance of the Borough of North Haledon.

The zoning ordinance was passed August 24, 1941. The defendant acquired on October 28, 1942, 'subject to the zoning ordinance,' a seven and one-half acre vacant and unimproved tract, called the Blasberg tract, located in the A Residence zone. The tract adjoins defendant's quarry property which is equipped with building and structures necessary to the quarrying business which defendant has operated there for over 40 years. In 1947 defendant stripped the surface of the Blasberg tract--'you take the top soil and the dirt and everything that is on top of the rock off'--and in 1950 commenced blasting the acreage; it was 'mostly stone underneath.' It is the quarrying of the Blasberg tract from and after August 17, 1950 which the complaint charged violated the zoning ordinance.

The ordinance limits and restricts 'building and sructures' only. It does not purport to regulate the nature and extent of the use of the land. See N.J.Const., 1844, art. IV, Sec. VI, par. 5; and cf. N.J.Const. 1947, art. IV, Sec. VI, par. 2; R.S. 40:55--30, 31, as amended, N.J.S.A. However, the Blasberg tract was quarried in the manner complained of in conjunction with defendant's already existing quarry property and operations, and in that circumstance the tract is regarded as subject to any applicable zoning restrictions. Midland Park Coal & Lumber Co., Inc., v. Terhune, 136 N.J.L. 442, 56 A.2d 717 (Sup.Ct.1948), affirmed 137 N.J.L. 603, 61 A.2d 76 (E. & A.1948).

The trial court set aside the conviction and entered a judgment of acquittal upon a finding that the Blasberg tract was being worked as a quarry when the ordinance was passed. This finding is based on testimony that defendant was permitted by the previous owner for some 25 years before the passage of the ordinance to truck across the tract shovels, drills and other equipment employed in working the pit of the original quarry, and evidence that before 1950 defendant 'did clean up a lot of loose rocks.' Clearly such proof was wholly insufficient to support a finding that quarrying of the Blasberg tract was in fact being conducted at the time the ordinance became effective.

Quarrying is usually the digging out of stone or slate from an open excavation. Assuming that a stripping operation necessary to the proper and convenient use of the pit may constitute quarrying, cf. Miller v. Chester Slate Co., 129 Pa. 81, 18 A. 565 (Pa.Sup.Ct.1889), there was no proof here of any stripping preparatory to the working of a pit on the Blasberg tract prior to 1947. The cleaning up of loose rock and the hauling of equipment both prior and subsequent to the passage of the ordinance were solely incidents to the working of the original quarry. Defendant's president frankly admitted that until 1950 'I would not say we did any quarrying' on the Blasberg tract.

The use at the time the ordinance was adopted established the non-conforming use which defendant was entitled to continue. Midland Park Coal & Lumber Co., Inc., v. Terhune, supra. The policy of the law is to restrict rather than to increase non-conforming uses. They may not be enlarged or radically modified. Speakman v. Mayor, &c., North Plainfield, 8 N.J. 250, 84 A.2d 715 (1951); Lynch v. Hillsdale Borough, 136 N.J.L. 129, 54 A.2d 723 (Sup.Ct.1947); affirmed 137 N.J.L. 280, 59 A.2d 622 (E. & A.1948). The quarrying of the Blasberg tract which added blasting and other operations to cut and dig rock therefrom represented a substantial change from the pre-existing non-conforming use and violated the ordinance. The permitted continuance of a non-conforming use is the continuance of the same use and not of some other kind of use. Kensington Realty Holding Corp. v. Jersey City, 118 N.J.L. 114, 191 A. 787 (Sup.Ct.1937), affirmed 119 N.J.L. 338, 196 A. 691 (E. & A.1938); 147 A.L.R. 167, at page 178; see 8 McQuillin, Municipal Corporations (3rd ed.) 389 et seq. Defendant acquired the tract subject to the zoning ordinance and with full knowledge of the restrictions imposed thereunder, and it seems obvious its efforts to extend its activities into forbidden territory is in effect an attempt to circumvent the prohibition of which it was fully aware. Plainly, the judgment appealed from cannot be sustained for the reason given by the County Court.

However, defendant argues other reasons here, raised but not passed upon in the County Court. At the oral argument both sides expressed the desire that this court determine them; and we shall therefore do so and shall not remand for their disposition in the County Court.

First, defendant contends that the quarrying of the Blasberg tract is merely the extension to that property of its presently existing non-conforming use on the original quarry property, and relies on Lamb v. A. D. McKee, Inc., 10 N.J.Misc. 649, 160 A. 563, 564 (Sup.Ct.1932). It was held in the Lamb case that the owner of a ten-acre lot from which on one acre it was excavating sand and gravel when the zoning ordinance was adopted was not guilty of a non-conforming use of land by extending its excavation thereafter to other portions of the tract, for it was not to be supposed 'a land owner would be entitled to continue a previous nonconforming use only on the precise spot where it was being done.' Such is not the situation here. Defendant acquired the Blasberg tract after the zoning ordinance was passed and the extent of any non-conforming use which may be continued thereon is to be measured solely by the non-conforming use, if any, being made of it at the time the ordinance became effective. Midland Park Coal & Lumber Co., Inc., v. Terhune, supra.

Defendant contends further that the provisions of the zoning ordinance limiting the use of the tract to residential purposes are unreasonable with regard to the character of the district and its peculiar suitability for particular uses and that the ordinance is therefore unconstitutional as applied to the Blasberg tract. True, a...