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Lumund v. Board of Adjustment of Borough of Rutherford

Decided: November 10, 1949.

JAMES H. LUMUND, PLAINTIFF,
v.
BOARD OF ADJUSTMENT OF THE BOROUGH OF RUTHERFORD, AND CLARENCE HARDIN, BUILDING INSPECTOR OF THE BOROUGH OF RUTHERFORD, DEFENDANTS



Waesche, J.s.c.

Waesche

The plaintiff sues to have this court review a decision made on April 11, 1949, by the Board of Adjustment of the Borough of Rutherford.

The plaintiff owns a plot of vacant land in Rutherford, which he acquired about four years ago, located on the northwesterly corner of State Highway Route No. 17 and Nevins Street. The plot has a frontage on Route No. 17 of approximately 216 feet, and a depth of approximately 90 feet. The zoning ordinance of the Borough, which was adopted July 16, 1931, restricts the area, in which this plot is located, to residential use.

On or about March 30, 1949, plaintiff applied to the Building Inspector of Rutherford for a permit to erect, on the aforesaid plot, a gasoline and motor-vehicle service station. The permit was denied. On April 11, 1949, the plaintiff appealed to the Board of Adjustment, which Board heard the appeal and denied it.

In the vicinity of the premises in question, State Highway Route No. 17 runs in a general north-and-south direction. It is a four-lane highway at this point, and the flow of traffic, both north and south, is heavy. There are no streets intersecting Route No. 17 on its easterly side.

Across this highway from the premises in question (that is, along the easterly side of Route No. 17) lies solid, dry, vacant land, extending for a distance of approximately 520 feet north from a point directly opposite the premises in question and about 440 feet south therefrom. This 960 feet -- approximately -- of highway frontage averages in depth from 100 to 120 feet. Back of this frontage, which is zoned for residential use, lies salt marsh meadow-land. North of this vacant strip of highway frontage and adjoining it is the Bonny Dell Dairy Farm, which was there prior to 1931, the year the zoning ordinance was adopted. The farm has a frontage of approximately 1,000 feet on the easterly side of Route No. 17, and an average depth of approximately 450 feet.

The first street south of Nevins Street, on the westerly side of the highway, is Crane Avenue, and then next further

south is Van Riper Avenue, both of which streets intersect the westerly side of Route No. 17. One block south of Van Riper Avenue is Rutherford Avenue, the center line of which is the boundary line between Rutherford and the Township of Lyndhurst. State Highway Route No. S-3 runs along the northerly side of Rutherford Avenue in a deep cut, about 672 feet south of Nevins Street.

The first street north of Nevins Street, on the westerly side of Route No. 17 (approximately 950 feet north of Nevins Street) is East Pierrepont Avenue. The next three blocks further north are short blocks, and the streets are consecutively named Elizabeth Street, Roliver Street, and Summit Cross.

The land fronting on the westerly side of Route No. 17 between Van Riper Avenue and Roliver Street (a distance of approximately 2,500 feet) is vacant, except for one single-family residence standing on the northwesterly corner of Crane Avenue and Route No. 17. Part of this frontage appears to be the rear yards of some of the single-family residences which front on the easterly side of Elycroft Parkway, a street which parallels the state highway and lies one block to the west thereof. Three or four new single-family residences, fronting on the easterly side of Elycroft Parkway, appear to be within 50 feet of the rear property line of the said plot owned by the plaintiff. The main part of the Borough of Rutherford lies to the west of Route No. 17, and all of the area from Route No. 17 westerly to the Passaic River is restricted to residential use by the Borough's zoning ordinance.

The plaintiff, who has been in the real estate business for about twelve years, testified at the hearing before the Board of Adjustment, that the land involved in this proceeding was not adaptable for residential use because of its fronting on a super-highway. He said that, in his opinion, the residential property in the neighborhood would not be adversely affected if he were permitted to erect a gasoline and automobile ...


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