For the prosecutor, Eugene F. Hoffman (Saul W. Arkus, of counsel).
For the defendant, Augustus R. Coddington (Anthony. P. Kearns, of counsel).
Before Brogan, Chief Justice, and Justice Heher.
The opinion of the court was delivered by
HEHER, J. Prosecutor challenges the validity of an amendment of the zoning ordinance of the defendant Township of Bernards adopted June 3d, 1941, upon the ground that it "arbitrarily converts 'Residence "A"' property into 'Business' property notwithstanding the absence of any change in its character or n the character of the property in the vicinity."
The original ordinance was enacted on December 22d, 1937. The tract commonly known as "The Old Basking Ridge School Property," situate at the northeasterly corner of Maple Avenue and Lindbergh Lane, was thereby constituted a "Residence 'A'" zone. It was bounded on the north, east and south by a "Residence 'B'" district, and on the west by one zoned for business. By the amendment, the whole of the "Residence 'A'" division thus delineated was rezoned as a "Business" district, limited to the pre-existing prescribed uses. The zoning otherwise remained unchanged.
The school parcel so confined to business uses is irregular in shape, with an area of a little more than an acre. It has a frontage of 230 feet on the easterly side of Maple Avenue, and extends to the east, along the northerly side of Lindbergh Lane, a distance of 220 feet. Prosecutor is the owner of lands comprising between four and five acres contiguous to the area in question, running north along the easterly side of Maple Avenue to Oak Street and extending on the east along Lindbergh Lane from the rear of the school lands to Homeland Avenue, a street paralleling Maple Avenue. There are erected thereon a tenanted three-family house, located at the southeasterly corner of Maple Avenue and Oak Street, and a dwelling house adjoining the school property to the northeast, occupied by prosecutor. The remainder of his land is unimproved. All of his lands are situate in a "Residence 'B'" zone. The school plot contains a stone building used as a schoolhouse until its abandonment as such by the local board of education in March, 1941. The area to the north, east and south thereof is and always has been devoted to residential uses -- to one-family houses in the main, some of which have been built since the enactment of the original ordinance. The westerly side of Maple Avenue, from Oak Street south to a
point not far beyond Henry Street, and the area to the west across Finly Avenue to Brownlee Place, are comprised within a district zoned for business and devoted to such use.
There is a preliminary question to be considered. It is said that "the injury complained of is only that common or general to all such property owners" outside of the area thus reclassified, and prosecutor therefore has not shown "such special injury or interest" as is requisite to the maintenance of this proceeding. We think otherwise.
It was conceded that certain uses permissible in a "Business" zone would substantially depreciate the value of lands contiguous thereto for residential purposes merely by reason of such adjacency; and so prosecutor has that special interest essential to a review of the action by certiorari. The writ of certiorari will lie where there is a showing that the applicant "will suffer a special injury beyond that which shall affect him in common with the remainder of the public." Tallon v. Hoboken, 60 N.J.L. 212; Barnes v. Park Commission, 85 Id. 70; affirmed, 86 Id. 141; Beecher v. Newark, 64 Id. 475; affirmed, 65 Id. 307; Faherty v. Bernards Township, 123 Id. 551; O'Brien v. Public Utility Board, 92 Id. 44; affirmed, Id. 587.
Prosecutor adduced evidence tending to show that certain uses authorized in the district as rezoned would depreciate his "home * * * 40%, and the property furthest away * * * 25%, and an average on the whole property of 33 1/3%." The local tax collector, called as an expert witness by defendant, testified that "were a business zone created immediately adjacent to private dwellings, which did not exist in a business zone," it is "probable that the value of those dwellings would depreciate," but that that would not be the case "if the residence were already in proximity to the business zone," although "that would depend upon what is erected in the business zone." ...