Wilson v. Borough of Mountainside

• Decision Date: 22 June 1964
• Docket Number: No. A--44,A--44
• Citation: 42 N.J. 426,201 A.2d 540
• Parties: Arthur A. WILSON and Jean C. Wilson, Plaintiffs-Appellants, v. The BOROUGH OF MOUNTAINSIDE in the County of Union, a municipal corporation, and The Board of Adjustment of the Borough of Mountainside, in the County of Union, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 426

42 N.J. 426

201 A.2d 540

Arthur A. WILSON and Jean C. Wilson, Plaintiffs-Appellants, v. The BOROUGH OF MOUNTAINSIDE in the County of Union, a municipal corporation, and The Board of Adjustment of the Borough of Mountainside, in the County of Union, Defendants-Respondents.

No. A--44.

Supreme Court of New Jersey.

Argued Dec. 3, 1963.

Decided June 22, 1964.

Melvin J. Koestler, Elizabeth, for plaintiffs-appellants (Koestler & Koestler, Elizabeth, attorneys).

Irvine B. Johnstone, Jr., Westfield, for defendants-respondents.

The opinion of the court was delivered by

HALL, J.

This case tests the validity of the use zoning of plaintiffs' 12-acre tract fronting on U.S. Highway Route 22 in the Borough of Mountainside, Union County. They were denied a recommendation for a variance by the board of adjustment, N.J.S.A. 40:55-39(d), to permit commercial utilization of the entire parcel instead of a limited business use in one corner allowed by an earlier variance and single-family residential use specified for the parcel by the current municipal zoning ordinance. This action in lieu of prerogative writ was then instituted in the Law Division to set aside the denial and, alternatively, to strike down the residential classification as invalid. In addition, the suit sought a declaration that particular provisions of the zoning ordinance imposing certain special regulations on the establishment of businesses and industrial uses, as well as comparable provisions of the planning board ordinance, constitute an improper method of land use control. The trial court decided all issues against plaintiffs. We certified their appeal on application while it was pending in the Appellate Division. R.R. 1:10--1A.

The thrust of the attack was a claim of unreasonable ordinance classification of plaintiffs' property for residential use and a contention that all highway frontage zoning in the borough was void by reason of an illegal method of control whereby such frontage had been limited by the ordinance to residential use over a long period of years and indiscriminate individual deviations therefrom for business and industrial uses had been regularly allowed through administrative action. The additional assault on the special regulatory provisions of the current ordinances is broadly a part of the latter aspect of the attack. It is most important to keep in mind that plaintiffs sought relief not just with respect to that portion of their property close to the highway but for its entire depth of nearly 900 feet.

The basis asserted for the variance was, save in one respect relating to alleged peculiar physical characteristics of the interior of the property, the same as that grounding the claim of invalidity of the zoning classification. Consequently, plaintiffs confined their proof before the trial judge on this issue to the evidence they offered in the board of adjustment to support the variance application together with their cross-examination of opposing witnesses. The defense evidence substantially consisted of a live repetition of the opposition testimony before the board. In view of the broad sweep of the contentions, the geographical and historical facts of the community as well as of the particular property are essential for consideration of the issues.

Mountainside is situated some 12 miles southwest of Newark in the midst of what has become in the last 10 to 15 years a heavily developed ring surrounding the North Jersey central urban core. The ring development, residential, commercial and industrial, extends a considerably further distance. If it is thought of as a half wheel, the spokes are made up of several through highways passing through the ring and on into further parts of the State and beyond. Route 22 is one of the most important of these spokes, running from U.S. Route 1 near Newark Airport generally westerly through the densely developed areas of Union and eastern Somerset counties into west central New Jersey, central Pennsylvania and further. At least three quarters of Mountainside's four- square-mile area lies on the southerly slope of the Watchung hills. Route 22, a divided highway with two or more traffic lanes in each direction, traverses the entire two and one-half mile width of the borough from east to west at the foot of the slope. The balance of the community extends south of this highway to the boundary of the Town of Westfield. Beyond the size-able amount of county parklands, located both on the top of the ridge and bordering Westfield, the business development along Route 22 to be described, and a few neighborhood stores located some little distance south of the highway near the Westfield line, the land use is entirely that of high-class, single-family residences. These dwellings, now housing a population of about 6500 which has increased more than five-fold since 1940, cover the hilly slope to a considerable extent and also occupy most of the limited amount of available land south of the highway. None front thereon except a small number which antedated the highway business development and still remain in residential use and two or three constructed since in connection with a business use on a particular property. The growth along the highway has not been residential but of a distinctly commercial character, for the most part unrelated to the single-family dwelling development of the remainder of the community, and in many respects typical of what has happened in numerous other New Jersey towns bisected by through highways where there has been no limitation of access thereto by abutting owners or from intersecting local streets.

The highway, first designated State Route 29, was constructed a little over 30 years ago. As distinct from a virgin right of way as in most of its other courses, through Mountainside it utilized the route of an existing county road known as Springfield Road, which ran from Scotch Plains on the west to the center of Springfield on the east. Mountainside was at that time really only a country village, off the beaten track, with a population of about 1000. The land uses on Springfield Road, though it was the main thoroughfare, were mixed, but by no means dense--a number of large and small houses on large and small lots, some properties even devoted to small scale agriculture with roadside stands, a few scattered local stores and service establishments, community service buildings and a very considerable amount of vacant frontage.

The tract now owned by plaintiffs lay on the north side of the county road about equidistant from the Scotch Plains and Springfield borders and 1500 feet or so east of the intersection of New Providence Road, which runs from Westfield over the hill to the Summit area. Its southwest corner was then, and now, occupied by an old mansion type structure, at that time used as an orphanage. The balance of the parcel was and still is vacant land. Slightly to the east of it on the county road was a church. Apparently to save the church from destruction in view of the need to widen the road for the new highway, the highway was divided near the orphanage structure for several hundred feet, the east bound lanes going south of the church on the right of way of the county road and the west bound lanes occupying a new road bed on a curve and rise between the church and the orphanage property. An island was thus created, known as Chapel Island, on which the church remained, and frontage of about 960 feet on the north side of the west bound lanes of the highway resulted for what is now plaintiffs' property. (Since the original construction, the State has acquired the easterly 600 feet of this frontage, to a depth of 100 feet, subject to a right of access to the interior across the same. This strip, like some others similarly acquired along other parts of the highway, has remained vacant and apparently it is intended that it always remain in that condition as some kind of a buffer.) The 12-acre tract thereby became trapezoidal in shape, with a depth of almost 900 feet and a rear line approximately 375 feet long.

The history of highway land use control in Mountainside is divided into two periods. The first commenced with the initial zoning ordinance adopted in 1933 and extended to late 1955, when the second and current period began upon the enactment of a new ordinance.

The pattern of purported regulation during the first period amounted, legislatively, to a classification of all highway frontage for single-family residential use only, save for a new ordinance amendments permitting commercial use on specifically described parcels and the creation in 1952 of a very small industrial zone at the extreme easterly end of the borough. The classification was completely without regard to existing nonresidential uses or any foresight or plan to deal with the pressures and changes which an interstate highway would inevitably bring. The ordinance limitations were coupled with an almost incredible, deliberate course of administrative action by the board of adjustment and governing body which can only be characterized as about as great a perversion of proper zoning as could be imagined. This was the indiscriminate granting of variances for nonresidential uses, with the result that the blanket residential classification meant practically nothing even if it could be conceived of as intrinsically valid In toto. The evidence shows that from 1945 until the passage of the 1955 ordinance 44 use variances for highway property were granted, and only six denied, for the whole gamut of uses which has become so distressingly familiar in almost solidly lining through highways in metropolitan and suburban areas--gasoline stations, garages, restaurants, motor courts, bowling alleys, driving ranges, real estate and other offices, stores, showrooms and warehouses, service establishments, light manufacturing businesses, and so on Ad infinitum, involving now buildings, enlarged use...