Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.
Charles T. Morris and Everett Weaver instituted an action in the Chancery Division seeking to enjoin defendants from violating the provisions of the zoning ordinance of the Borough of North Haledon "by reason of the nuisances created by all of the * * * defendants as a result of which the plaintiffs have, are and will suffer special injury and damage other than as members of the general public." Weaver subsequently withdrew as a party plaintiff, having moved to another municipality. Defendant Seiber was by stipulation eliminated as a party defendant. The second count of the complaint involving defendant Borough of Haledon was abandoned and accordingly dismissed. The third count involving defendant Neil Struyk, Building Inspector of the Borough of North Haledon, was also dismissed because cognizable only in the Law Division. The Chancery Division entered final judgment denying the injunction sought against the remaining defendants
under the first count of the complaint. Plaintiff appeals.
The Chancery Division held that
"An individual suitor may not secure an injunction simply by proving a violation of a zoning ordinance. He still must show that the violation is a nuisance which has resulted in special damage to him."
It concluded that most of the things of which plaintiff complained were "noises incidental to the normal operations of the several businesses" of defendants. Not being excessive they furnished no ground for the court's intervention. However, the court declared that it would enjoin defendants' operations to the extent that they interfered with plaintiff's nightly rest. It therefore restrained defendants from carrying on the operation of their respective businesses after 7 P.M. It also enjoined them from burning rubbish, so as not to inconvenience plaintiff by smoke, soot and odors. In view of its conclusions, the Chancery Division did not pass on the validity of the zoning ordinance of North Haledon or its effect upon lands owned within that municipality by the Borough of Haledon. Morris v. Borough of Haledon , 20 N.J. Super. 433 (Ch. Div. 1952).
Defendants' businesses are located on a tract owned by the Borough of Haledon in North Haledon for reservoir purposes. Originally there were five buildings on this tract which the National Youth Administration used from 1939 until the Fall of 1942 as a school to instruct and train boys in carpentry, painting, plumbing, welding and other trades. Thereafter the Army Signal Corps took over for a brief period. Later part of the property was used by a company making gun turrets and gun mounts.
Freudenthal rented two of the buildings for his woodworking business in 1943. When one burned down in 1948 he transferred his operation to the other. Defendants Potts and Vitz, trading as Paintex Body Works, began their truck repair and painting operations in one of the buildings in February 1946. Herrmann Sheet Metal Works moved into its building in July 1947.
The Borough of North Haledon adopted its zoning ordinance August 13, 1941. The tract in question was placed in an "A" residence zone, which is restricted to one-family, detached dwellings. Plaintiff purchased a property in that zone in May 1947. It was then a summer cottage, now converted into a year-'round residence. The dwelling abuts the Haledon tract and is 120 feet from the Freudenthal shop, 150 feet from the Herrmann plant and 275 feet from the Paintex building. The disturbances of which plaintiff complains began in the summer of 1948. The Freudenthal operations result in loud noises from electric saws and shapers, in hammering and banging, and the odor of paints and lacquers. At Paintex there are pounding noises, the hissing sound of air hoses, the roaring of steam from the steam jetty, and the racing of motor trucks. From the Herrmann plant comes the loud sound of the electric sanding and welding equipment, hammering and banging on metal, and the vibration of revolving heavy tubs. At night the welding work is accompanied by blinding flashes. Defendants have operated their businesses as early as 6 A.M. and sometimes until late in the evening, and on Sundays and holidays. All of them at one time or another burned rubbish and debris, resulting in noisome odors, soot and smoke.
Plaintiff claims that all this noise, commotion, vibration and smoke disrupts normal living and destroys the peace and comfort of his home. His family cannot carry on a conversation or listen to the radio. Odors and soot come in at the windows. Sleep is disturbed. Plaintiff's wife has suffered splitting headaches.
On the other hand, defendants claim that the noise is only that normally associated with the operation of their businesses. They deny working in the early morning, at night or on Sundays. They say they ...