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Baris Lumber Co. v. Town of Secaucus

Decided: June 23, 1952.

BARIS LUMBER CO., INC., A NEW JERSEY CORPORATION, PLAINTIFF,
v.
TOWN OF SECAUCUS IN THE COUNTY OF HUDSON AND JOHN SCHOELLER, BUILDING INSPECTOR, DEFENDANTS



Joseph L. Smith, J.s.c.

Smith

[20 NJSuper Page 587] This matter is before the court by way of complaint in lieu of prerogative writ to set

aside ordinances amending the May 11, 1948 zoning ordinance of the Town of Secaucus, Hudson County, New Jersey, insofar as they affect the plaintiff's property.

The plaintiff purchased the premises which are the lands affected by the zoning ordinance and its various amendments, on October 11, 1951. The land is 13 1/2 acres and is approximately 1,700 by 300 feet.

The easterly 750 feet is in the "D" Light Industrial Zone. At the time the plaintiff purchased this property, the existing zoning ordinance covering the "D" Light Industrial Zone prohibited therein the sale of used lumber, used plumbing and heating pipes and fixtures, used mason materials or used building materials. (Section 9, paragraph 37, zoning ordinance of 1948).

The plaintiff originally conceded and abandoned any claim or right to operate such a business (sale of used building materials, etc.) in the most easterly 500 feet of the property in question. However, it has now withdrawn this concession.

On November 16, 1951, by Amendment No. 6 to the zoning ordinance, the uses in the respective zones were changed. By this amendment, paragraph 37 of section 9 of said ordinance controlling the "D" Light Industrial Zone was so amended that the storage, as well as the previous restriction as to the sale of used building materials, was prohibited therein.

Section 9, paragraph 37. "The storage and sale of used lumber or used plumbing and heating pipes and fixtures or used mason materials or used building materials."

Furthermore, section 10 of the said zoning ordinance of May 11, 1948, covering use restriction in the "E" Heavy Industrial Zone now, by said amendment of November 16, 1951, for the first time prohibited the storage and sale of used building materials.

Section 10, paragraph 41. "The storage and sale of used lumber or used plumbing and heating pipes and fixtures or used mason materials or used building materials."

The effect of this municipal legislation was to exclude entirely from the Town of Secaucus the business of the storage and sale of used building materials, used lumber, used mason materials and used plumbing and heating materials. The said exclusion affects not only the plaintiff's property but all property within the territorial confines of the town.

The plaintiff seeks and contends that these various amendments should be set aside as an unauthorized interference and restriction of the plaintiff's ...


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