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Preye v. Board of Adjustment of Township of North Bergen

Decided: October 10, 1952.

FRED E. PREYE, ET ALS., PLAINTIFFS-RESPONDENTS,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NORTH BERGEN, DEFENDANT AND EDWARD MOTORS, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT



Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

[22 NJSuper Page 164] Defendant Edward Motors, Inc. appeals from a judgment of the Superior Court, Law Division, reversing and setting aside a determination of the

Board of Adjustment of the Township of North Bergen granting it a variance from the township zoning ordinance.

Edward Motors, Inc. conducts an automobile sales and service business at the northeast corner of Hudson County Boulevard and 82nd Street, commonly known as 8200 Hudson Boulevard, in the Township of North Bergen. The building has been used for that purpose for almost 25 years, and by the company since December 1945. The structure is L-shaped; it fronts 50 feet on the boulevard, extends back 125 feet on 82nd Street, and runs 100 feet across the rear, parallel to the boulevard. The sales department is in the front part of the building and the garage in the rear part forming the "L." Cars that are to be serviced are brought into the garage through an entrance on 82nd Street. Edward Motors, Inc. also has a lot directly across the boulevard where it formerly kept its new cars and now keeps rental automobiles and trucks. In 1948 the company purchased three vacant lots in the rear of its building, each measuring 25' x 100'. Together they form the northwest corner of 82nd Street and Fifth Avenue, fronting 75 feet on 82nd Street and 100 feet on the avenue.

Under the zoning ordinance of North Bergen Township, adopted March 28, 1934, both sides of Hudson County Boulevard, running for some distance in each direction from the Edward Motors building, are zoned for business purposes to a depth of 100 feet. The lands in the rear of the business strip on the southeast side of the boulevard and extending to Fifth Avenue are zoned as a Second Residential District, where businesses of any kind, commercial, manufacturing and industrial enterprises, and garages of any kind on vacant lots are forbidden. (It will be observed that the rear 25 feet of the Edward Motors building is located in a Second Residential District, so that this part of the premises constitutes a pre-existing, nonconforming use.) The area between Fifth Avenue and First Avenue to the southeast, extending for three blocks on each side of 82nd Street, is zoned as a First Residential District where apartments for

more than two families, as well as the uses prohibited in a Second Residential District, are proscribed.

It appears from the pretrial order that in June 1950 Edward Motors, Inc. applied to the building inspector of North Bergen Township for a permit to construct a garage building on the tract in the rear of 8200 Hudson Boulevard. The permit was refused. On appeal, the board of adjustment granted a variance permitting a garage, but the construction was never undertaken.

Subsequently, on July 18, 1951, the company applied to the building inspector for a permit to grade the vacant tract, construct thereon an amecite hard-top surface, fence in the entire area with a 6 1/2-foot rustic picket fence having a single entrance-exit gate on 82nd Street immediately adjacent to the main building, and to break through the rear wall of the garage in order to provide ready access to the lot. The fenced lot was to be used solely for the parking of passenger cars owned by Edward Motors, Inc. or its customers. The application was rejected by the building inspector and the company thereafter appealed to the township board of adjustment for a variance from the zoning ordinance.

The board held a public hearing on August 8, 1951. Edward Zubalsky, president of the company, appeared on its behalf and represented that the lot would be used for the stated purpose only; that business had increased to such an extent that there were no facilities for parking new cars; that the proposed use would take off the streets cars brought there by customers for repair, and that the lot could not be used for the erection of an apartment building or a private dwelling. He presented a petition, marked in evidence at the trial in the Law Division, signed by 30 "owners of property in the vicinity of two hundred feet" from the vacant land, consenting to and approving of the proposed use. (Eight of the signers subsequently withdrew their approval. Of the remaining 22 signers, 14 are located on the boulevard, seven being more than a block away from the lot; seven reside on Fifth Avenue, but six of these live two or three blocks away

from the lot, and one lives a block away on 82nd Street.) Counsel for 17 objectors living in the neighborhood stated that the neighborhood was one of the finest residential districts in North Bergen Township and that the contemplated use would affect both the First and Second Residential Districts.

A further hearing was held before the board of adjustment at its October 24, 1951 meeting. One of the board members having been replaced by a new member since the first hearing, Zubalsky briefly reviewed the proposal for his benefit. He argued that the case was one of hardship since the company would be forced to sell and locate elsewhere if it could not use the property in the manner proposed. Counsel for the objectors pointed out that there was no hardship present, that the applicant was aware of the restrictions when the property was purchased in 1948, and that the zoning scheme should be preserved because the area was one of the few residential districts left in North Bergen.

The board met again on November 14, 1951, with only four members present. What followed after adjournment was extraordinarily informal, for all four then went to the home of the absent member, who was convalescing from a recent operation, and there voted on granting the variance requested by Edward Motors, Inc. The vote was 3 to 2 in favor of the variance. The manner in which the vote was taken is not challenged.

The resolution granting the requested variance was signed on November 20, 1951 by the three members of the board who had voted in favor of the grant. It recited that the proposed parking area was necessary to the applicant in order properly to conduct its business; that the property immediately adjoined an area zoned for business and was close to the heavily-trafficked boulevard; that the proposed use "would be desirable as a safety factor and as an improvement to the surrounding area," and that "after due consideration of the evidence and after an inspection of the property ,

it is the finding of the Board that the circumstances herein constitute an exceptional situation for the affected property and strict application of the zoning ordinance would result in peculiar and exceptional practical difficulties and an extreme and unnecessary hardship upon said Edward Motors, Inc. and the relief herein granted is without substantial detriment to the public good and will not substantially impair the intent and purposes of the zoning ordinance; * * *." (Italics ours.)

At the time of the adoption of the resolution there was no report on file of the physical inspection allegedly made by the board members. Such a report was filed on February 27, 1952 by the three members who signed the resolution. The two members who voted against granting the variance had in the meantime left the board. The report recites that all the members of the board inspected the property on August 15, 1951 and on October 24, 1951. It further recites that the Edward Motors business was substantial and extensive and the repair shop so overcrowded with automobiles that there was insufficient working space; that the lot in its present state detracts from the appearance of the neighborhood; that the lot had a depth of only 75 feet from Fifth Avenue, whereas all other lots adjoining the property on Fifth Avenue had a depth of 100 feet with private garages in the rear, so that the depth of the premises in question would be insufficient for the usual one- or two-family residence and garage, particularly since the zoning ordinance required that the garage be constructed on the rear of the lot; that it was "unlikely that any residences or apartment house facing 82nd Street would be constructed since it [ sic ] would immediately adjoin the business operated by Edward Motors and would be close to Hudson Boulevard which is a business area"; that the rear 25 feet of the building used by Edward Motors adjoining the lot is already within the Second Residential Zone and has rear wall windows looking out upon the property; that the construction of the fence proposed by the company would enhance the appearance of the area; and

that the proposed parking area would remove from the street cars parked and even double-parked on 82nd Street by the customers of Edward Motors, thus eliminating a traffic problem and hazard.

On December 14, 1951 plaintiffs, 14 in number (seven couples) and residing in the immediate vicinity of the lot, filed their complaint in lieu of certiorari challenging the variance granted by the board of adjustment as a violation of the zoning ordinance and a private nuisance. Both the board and the defendant Edward Motors, Inc. filed answers. The case was pretried on February 1, 1952, and the pretrial order sets out the contention of the parties. The plaintiffs contended that the action of the board of adjustment was arbitrary, capricious and an abuse of discretion; that the board minutes were fatally defective in that they did not describe the conditions which the board found when it inspected the premises; that when the company purchased the property it had knowledge that it was buying in a restricted area; that there was no unnecessary hardship on the defendant, and that the land in question was adaptable for other uses. The defendants contended that the decision of the board was made in the exercise of its sound discretion and for the public ...


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