For the prosecutor, Samuel Saffron (Saul Nemser, of counsel).
For the defendant, Joseph J. Weinberger.
Before Justice Heher, pursuant to R.s. 1937, 2:81-5.
HEHER, J. The question at issue here is the propriety of municipal action denying prosecutor's application "for permission to occupy or use" a tract of land possessed by it as lessee (there were no buildings thereon except a small "telephone shack") abutting two hundred and eighteen feet on the westerly side of the Passaic river, a navigable stream, for the "loading" of scrap iron & steel on scows & storage."
The application was made on December 20th, 1938, to the supervisor of buildings of the City of Passaic, wherein the lands are situate. It met with immediate rejection by that officer on the ground that the "property is in the Industrial Zone, and the Zoning Ordinance, under section 16 and the amendments passed in 1935, does not permit a business of
this type which is classified as a Junk Yard." Thereupon, prosecutor appealed to the Board of Adjustment of the municipality; and that body, at a meeting held on March 27th, 1938, "voted to uphold" the supervisor's "refusal to grant a permit" to prosecutor "to use dock space" on the premises "as a terminal for storage and loading iron and steel." This writ of certiorari was then sued out; and the entire proceedings have been returned in accordance with its mandate.
The local zoning ordinance was adopted on June 20th, 1922. It provided for the continuance of existing non-conforming uses, and for the issuance of certificates of occupancy by the building supervisor. On April 2d, 1935, a supplement to the ordinance was adopted prohibiting the operation of "Junk Yards" within the industrial districts delimited by the ordinance; and the initial and determinative point of inquiry is whether the use thus sought to be made of the premises falls within the prohibited category. I am of the view that it does not.
The proofs disclose that prosecutor is engaged in the business of vending scrap iron, steel and metal. It has places of business in this country and in Europe. It has used the locus merely as a shipping station, and sought the certificate of occupancy as a warrant for continuing that use. It is designed to employ the premises for the storage of these commodities only as an incident to this primary use. The material is to be placed on boats and barges moored in the adjoining river for transportation to the Newark Bay, and thence to distant ports. It is not intended to devote the premises, nor has such use been made of them, to the cutting, sorting, treatment, or processing of the scrap metal. Only select steel scrap, classified as Grade No. 1 and Grade No. 2, "heavy melting steel scrap cut to mill size by the original sources," is to be shipped from this depot. The pieces of scrap so graded do not exceed five feet in length. Those comprised in Grade No. 1 "must not exceed eighteen inches" in width, and "be at least a quarter of an inch * * * in thickness," while the pieces falling into Grade No. 2 "must be over eighteen inches wide, and may run from one-eighth of an inch * * * to a quarter of
an inch in thickness." There is no equipment upon the premises except an electro-magnet crane used for the lifting of the metal pieces to the moored vessel.
The lands are not to be used for the purchase or sale of such materials. These transactions are to be carried on elsewhere; and the deliveries to prosecutor's premises will ordinarily be made by the dealers in their own vehicles. Normally, the material thus delivered will be loaded on the vessel directly from the dealer's truck. On the occasions when that course is not feasible, the delivered merchandise will be stored not "more than the length of time it takes ...