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Berdan v. City of Patterson

Decided: December 13, 1948.


On appeal from the former Supreme Court.

For affirmance: Chief Justice Vanderbilt and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For reversal: None. The opinion of the court was delivered by Wachenfeld, J.


The Board of Public Works of the City of Paterson, acting on the recommendation of the Board of Adjustment of the city, permitted Anco Products Corporation to use premises in a residential zone for heavy industrial purposes for a limited period of time. Appeal is taken from a decision of the former Supreme Court reversing the action by both Boards.

Anco Products Corporation is lessee of premises in a "B" Residence zone at 911-927 East 23rd Street, Paterson, New

Jersey, under a five-year lease commencing in September 1944. It originally used the premises to make "inverters" for airplanes and in August 1945, upon the cessation of hostilities, changed to the assembly of small motors (one-eighth to one-third horsepower) used on sewing machines and oil burners.

In February 1947 large presses were brought upon the premises which operated at sixty to eighty strokes a minute. Their noise was audible beyond the premises, disturbing the immediate residents. The plant operated from early morning until after midnight and infrequently on Sundays.

A month after the installation of these presses the Building Department of Paterson notified Anco that it did not have a certificate of occupancy for the use of the premises and advised it to obtain one. The Building Inspector refused to issue the certificate and Anco then filed an application with the Board of Adjustment for a "variance" from the zoning ordinance of the city on the basis the activity was light manufacturing in nature, a lawful, pre-existing non-conforming use. The Board held a hearing at which it was shown there were lathes, drill presses, punch presses and other machines used in the manufacture, processing and assembly of metal parts for complete motors. One drill press alone weighed approximately twelve tons. Numerous property owners in the immediate neighborhood, by petition and testimony, objected to the application on the basis that noise from the plant was very disturbing and soot from the oil-burning furnace, obnoxious.

On July 2, 1947 the Board determined the objections were justified and that "The existing use is a heavy industrial one and its proper classification is a machine shop," while the maximum degree of non-conformity under which the premises have been operated since the enactment of the zoning ordinance was "light industrial." On the other hand, the Board pointed out that the lease was executed during war conditions and the operations were undertaken "at the instigation of the United States Signal Corps." It noted Anco would continue to be liable for the rent regardless of occupancy and that the company employs two hundred or more persons who are dependent upon this business for their economic

welfare. Although concluding, "If this Board were to grant this variance its action would be unlawful * * * because the use proposed is a prohibited one in that zone," it nevertheless recommended to the Board of Public Works that the existing use be allowed for the duration of the lease upon the condition that all noises would be reduced so as to be inaudible beyond the premises or operation limited to six days a week, eight a.m. to seven p.m., and that smoke from the oil-burning furnace be eliminated.

The Board of Public Works at first voted not to concur in that recommendation but upon rehearing, despite additional testimony in support of the findings of the Board of Adjustment and after a personal inspection of the property, voted to approve it. On certiorari to the former Supreme Court the determinations of the Board of Adjustment and Board of Public Works were reversed.

Since the enactment of the local zoning ordinance and up to the occupancy by Anco, these premises have been continuously used for light industrial purposes and therefore exempt from the zoning restrictions limiting the district to residential use. R.S. 40:55-48. It was on that basis that appellant applied to the Board of Adjustment for a determination that its activity is light manufacturing in nature and therefore permissible as a continuance of the pre-existing non-conforming use. The company did not contest the conclusion the previous uses were ...

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