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Borough of West Caldwell v. Zell

Decided: October 17, 1952.

BOROUGH OF WEST CALDWELL BY STEPHEN SIMONY, BUILDING INSPECTOR, PLAINTIFF,
v.
MORRIS ZELL AND RALPH RINEHARDT, DEFENDANTS



Speakman, J.c.c.

Speakman

This is an appeal from a judgment of conviction in the Municipal Court of the Borough of West Caldwell for violation of section VI of that municipality's zoning ordinance and by consent was heard on the record taken below.

The question presented is whether the use made of the building owned by the defendants designated as 1045 Bloomfield Avenue, was a violation of the ordinance which prohibits the use of any building for purposes other than those specifically permitted.

The complaint alleges that, "* * * on or about May 21, 1952 (the defendants) did permit the said building erected thereon and the premises thereof to be used as a

transfer depot and truck terminal for the loading and unloading of truck cargoes, with the use of large tractors and trailers, which use is an industry, business and purpose that is not authorized or permitted in the business district * * *" (Emphasis added).

The appellants contend that the activity carried on comes within the permitted uses. The ordinance provides that a public garage for purposes of auto repair is permitted. Paragraph 7, section VI. Also permitted, under certain limitations as to the number of employees and amount of power utilized, is the storage of foodstuffs, fodder, fuel or building material, and furniture storage. Paragraph 8, section VI. Appellants seek to justify their use of the property by a reading of these two paragraphs together, to the effect that a garage and warehouse for storage would be authorized. However, this is not the activity which is the subject of this action.

Norman MacLeod, an officer of the tenant corporation and the person in charge of the activities at the premises testified to the effect that the tenant freighted commodities in, took them off the trucks, put them on the platform, and delivered them to the owners when they were called for. On the basis of this testimony, taken together with all the other evidence, it is clear that a trucking terminal was being conducted at the premises of the defendant. A reading of the ordinance discloses that such an activity is not a permitted use in a business district. Therefore the activity of the defendants-appellants on May 21, 1952 was a violation of the ordinance.

Appellants further contend that their activity is not unlawful for the following reasons:

1. The ordinance is not uniform throughout the district and therefor is in conflict with R.S. 40:55-31.

2. The ordinance is unconstitutional because it is based on an arbitrary and unreasonable classification and thus fails to conserve the value of the defendant's property, and because there is no relationship between the health, safety and welfare

of the people and the purpose which it attempts ...


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