The plaintiff Borough of Rockleigh seeks an injunction to restrain an alleged violation of its zoning ordinance by the defendant. The charge is that the defendant has extended improperly a nonconforming use of its premises.
The Borough of Rockleigh is a very small community in the most northerly section of Bergen County. It has a population
of 105 people. There are 25 homes in the borough. Its commercial activities are confined to a riding stable, a combination garage and welding shop and the plant of the defendant corporation. All of the business activities are located in one neighborhood.
Defendant's building stands on a plot approximately 550 feet by 310 feet. It was originally built to house an indoor polo field. In 1942 the property was purchased by a corporation known as Aero Metalcraft Corporation, which manufactured mufflers for planes, chairs, cabinets, and later, parts for military tanks.
In 1948 the Aero Metalcraft Corporation became bankrupt. Thereafter, by arrangement with the trustee in bankruptcy, the defendant took possession of the premises in the latter part of March or early April, 1949. On April 8, 1949 defendant contracted to purchase the lands and building from the trustee in bankruptcy and the contract was later consummated by the delivery of a deed on July 26, 1950.
In 1924 the Borough of Rockleigh adopted a zoning ordinance under the provisions of which the district in which the property now owned by the defendant is located was classified as residential. In 1944 an amended zoning ordinance was adopted. This ordinance, it is conceded, was passed for the benefit of defendant's predecessor in title, Aero Metalcraft Corporation. In this latter ordinance the property in question was classified in the "D" or light industrial zone. Light manufacturing which is permitted in the "D" zone, was described in the ordinance as follows:
"Section 4. District D Zone. (a) 2. Light manufacturing which is herein defined as the converting of raw, finished or unfinished material into an article or articles of a similar or different character, purpose or use, printing, publishing, engraving, woodworking, carpentering, cabinet making, of any nature which does not require power of any kind more than the equivalent of five (5) H.P. of electrical energy per machine and which does not involve or require hammering or striking together or beating of metal or hard substance."
By a further amendment to the zoning ordinance adopted on April 5, 1949 the district in which defendant's property is located was again classified as residential.
On April 5, 1951 the defendant applied for and was granted a building permit for the erection of a 250,000-gallon water tank. The application was accompanied by plans and specifications. Immediately thereafter the defendant spent or obligated itself to spend the sum of $85,000 for this project. No water mains have ever been laid in the borough. The sole water supply is from wells. And it is not disputed that the reason for the erection of the tank was a desire on the part of the defendant to provide itself with fire protection. Defendant's intention had been known by the borough officials for about a year. They had registered no objection to the water tank. They did, however, express disapproval of the introduction of water mains into the borough. The reason for such disapproval was the fear as expressed by the mayor that the availability of water would cause an influx of new residents, a result which was not desired by the council.
After the building permit was issued the defendant proceeded with the construction of the tank. This fact was also known to the borough officials. No objection was registered by them until the tank was practically completed. ...