On appeal from Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.
Of our own motion we certified this appeal of the plaintiff to the Appellate Division from a judgment entered in defendants' favor in the Law Division in two actions brought by plaintiff, one to set aside the determination of the local board of adjustment denying him a variance, and the other to have the zoning ordinance adjudged invalid as applied to his property.
Plaintiff's lot, approximately 100 feet square, lies in the center of a square block in the Borough of Haddonfield. It is surrounded by properties abutting the streets which bound the block -- Clement Street on the north, Mechanic Street on the east, Tanner Street on the west and Kings Highway East on the south. The piece has been detached since 1927 from the lands abutting on the streets. At that time and when plaintiff purchased in 1948 the only access to the property was from Kings Highway East through a driveway between two structures facing that thoroughfare. Plaintiff has since bought a home on Tanner Street alongside which he has constructed a driveway which provides ingress to the property from Tanner Street.
Haddonfield is a residential community. There is no significant industrial activity in the borough. Business enterprises are almost entirely confined to retail and mercantile establishments. The neighborhood in which plaintiff's lot is located is residential. The square block in which the piece lies is zoned, however, for retail and mercantile uses
in approximately two-thirds of its area north from Kings Highway East, including all of the lots abutting on that thoroughfare, and for two-thirds of the distances along Mechanic and Tanner Streets north toward Clement Street which, with the rest of Mechanic and Tanner Streets, is zoned for residential use. The single exception is a lot of Atlas Instrument Company with a frontage of 66 feet on Tanner Street near the corner of Kings Highway East, which by amending ordinance adopted in 1944 was zoned to permit Atlas to operate a small machine shop thereon, as it has done since that time.
When the zoning ordinance was adopted in 1939 there was a dairy with stable and outbuildings on the plaintiff's lot. Ownership passed through several hands until the piece was acquired by Atlas Instrument Company in 1944 which erected in one corner thereof a 30- by 70-foot one-story cement block building which the company used in connection with its machine shop business on the Tanner Street lot. Plaintiff was an employee of Atlas Instrument Company. He bought the lot from his employer to start his own machine shop business. In 1950 he tore down the barn and remaining outbuildings and enlarged the cement block building with an addition approximately 60 feet by 45 feet in dimensions. He installed considerable machinery including grinders, milling machines, lathes, saws and two fixed arc welding machines. His business has grown substantially, employing at the time of the hearings before the local board some 40 persons with a weekly pay roll between $3,000 and $3,500. The Law Division found that "at the present time the business which began as a small machine shop has become a factory." Plaintiff is now manufacturing tools and dies in addition to supplying machine shop service.
The new construction was done under a building permit issued by the borough clerk on order of the building inspector but without reference of the application to the board of adjustment or to the governing body of the borough. Plaintiff, however, did not contend below, nor does he here, that
because he enlarged his plant in reliance on the building permit the borough is estopped to require his compliance with the provisions of the zoning ordinance. Cf. Kurowski v. Board of Adjustment of Bayonne, 11 N.J. Super. 433 (App. Div. 1951).
Plaintiff's argument is that it was the duty of the local board to grant him a variance or that in any event the application of the zoning ordinance to his property works an arbitrary and capricious interference with his rights of enjoyment thereof and amounts to a practical confiscation of it. He relies upon the same proof as supporting the two alternative bases for relief, namely, that the difficulties of public access to the piece make "the land in question * * * so peculiarly situated as to make it unique," "it is circumscribed and bounded by properties on all four sides and it has no access to any of the streets except by a 10-foot public alley on one side and a 10-foot private alley on another side which was purchased by plaintiff." In the circumstances his attack upon the validity of the ordinance as applied to his property necessarily fails if the local board's action denying him a variance is sustained.
By a 1944 amendment to the zoning ordinance it was provided that "Any use or purpose which will create or which is likely in the opinion of the Board of Adjustment to create a nuisance or conditions of hazard, smoke fumes, noise, odor or dust detrimental to the health, safety or general welfare of the community shall not be permitted." There was considerable evidence before the local board that plaintiff's present scale of operations is causing great discomfort and annoyance to householders of the neighborhood both in homes on the abutting lots fronting Clement, Mechanic and Tanner Streets and in other homes of the neighborhood generally. Great noises, brilliant light flashes and the general hubbub incident to an industrial operation of this kind, ...