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Borough of Cresskill v. Borough of Dumont

Decided: April 5, 1954.

BOROUGH OF CRESSKILL, ET AL., PLAINTIFFS-RESPONDENTS,
v.
BOROUGH OF DUMONT, DEFENDANT-APPELLANT



On certified appeal from the Law Division of the Superior Court

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J. Oliphant, J., concurring in result.

Vanderbilt

From a decision of the Law Division of the Superior Court setting aside an amendment to its zoning ordinance the defendant Borough of Dumont appealed. We certified the borough's appeal on our own motion while it was pending in the Appellate Division.

The focal point of the action is Block 197 on the tax map of Dumont, which as a result of the challenged amendment to the zoning ordinance would be changed from an A and B residential zone to a D business district. Two separate complaints were filed, the first by three neighboring boroughs of Cresskill, Demarest and Haworth and by several residents of these boroughs as well as by several residents of Dumont. The second complaint was filed by William A. Wendland and Marjorie Wendland, his wife, who are property owners on the block in question.

The first complaint in effect charges that the amendatory ordinance is not in accordance with the comprehensive zoning plans in effect in the boroughs of Cresskill, Demarest, Dumont and Haworth in that it fails to take into consideration the physical, economic, and social conditions prevailing throughout the entire area of those four municipalities and the use to which the land in that region can and may be put most advantageously, and that regard was given solely to the political boundaries of the Borough of Dumont in utter disregard of the contiguous residential areas of the plaintiff boroughs. Lastly, the complaint charges that the amendment is invalid in that it represents "spot zoning" for the benefit of an individual property owner and thus constitutes a variance from the previously existing ordinance obtained without recourse to the Board of Adjustment of the Borough of Dumont, as prescribed by statute. The complaint filed by the Wendlands asserts that the amendatory

ordinance is not in accordance with the comprehensive plan for zoning in Dumont, that the amendment will destroy the present character of the plaintiffs' lands, that it constitutes "spot zoning" and is an invalid attempt to grant a variance.

The defendant filed a separate answer to each complaint, claiming in each instance that the ordinance was a valid exercise of the zoning power. As to the first complaint, filed by the three boroughs and the individual plaintiffs, it claimed that neither the boroughs nor such individuals as were not residents of Dumont were proper parties, and that those plaintiffs who were residents of Dumont had no standing because their property rights were not affected. As to the complaint of the Wendlands the defendant claimed that the action was not brought in good faith and that the complaint failed to state a claim on which relief could be granted. The cases were consolidated for trial.

According to the 1950 census the four boroughs had a combined population of approximately 20,000. Dumont, with a population of 13,013, was the largest, while Cresskill was second with 3,534. Demarest had a population of 1,786, while Haworth followed with 1,612. Block 197 is a rectangularly shaped area at the extreme northeast corner of Dumont and extends north and south approximately 787 feet along Knickerbocker Road, a heavily travelled county highway, on the east and Franklin Street on the west. The block is approximately 195 feet wide, bordering on Massachusetts Avenue on the north and DeLong Avenue on the south. Massachusetts Avenue is the dividing line between the Boroughs of Dumont and Haworth, while Knickerbocker Road separates Dumont from the Boroughs of Cresskill and Demarest, with the result that across these two streets on the north and east sides of Block 197 are lands in adjoining municipalities. The properties adjoining Block 197 on the west and south are in Dumont.

The areas covered by the four municipalities are on the broad slope west of the Palisades. It is only in relatively recent years that the countryside has been converted from a rural to a highly developed suburban region. Due to

their comparatively late change in character these boroughs have been able to avoid the misfortunes of other municipalities which developed before the recognition in this State of zoning. All four boroughs are to a high degree residential in character with a total of between 6,000 and 7,000 dwelling units in all. The character of the entire region can best be understood by noting that throughout the entire length of Knickerbocker Road, which is a main county highway extending north from Englewood to the New York State line, with the exception of one small business area, there are only three business establishments, two of which are nonconforming uses. With the exception of a small area zoned for business, Cresskill is exclusively residential with no industrial district, and the area along Knickerbocker Road opposite Block 197 is strictly zoned for single-family dwellings. Similarly Demarest is almost entirely residential and the area adjoining Knickerbocker Road facing the block in question is zoned exclusively for single-family dwellings. Haworth has a small business zone but the borough is almost entirely residential and the area across Massachusetts Avenue to the north facing Block 197 is zoned exclusively for residential purposes.

Although Dumont has a small industrial and business zone, it also is principally zoned for residences. In Dumont the area extending west and south from Block 197 for approximately one-half a mile in both directions is zoned for residential use only, except for one corner lot near the property in question which was rezoned from a residential to a business district by an amendment to the ordinance, an action which the trial court characterized as "obviously spot zoning and illegal." In the immediate vicinity of Block 197 and to the west of it are over 100 one-family houses in the $17,000-price class which are in the process of construction, and the mayor of Dumont testified that 200 to 220 residences are to be constructed in that area.

In the adjoining area in Cresskill, Demarest and Haworth the properties are strictly residential with the exception of a gasoline service station, a tavern, and a construction storage

yard, all of which are nonconforming uses in the residential zone and are about one-third of a mile from Block 197. There is an attractive and ample business center in Dumont approximately half a mile from Block 197. There are also business centers in Cresskill, Demarest and Haworth at distances varying from nine-tenths of a mile to a mile and a tenth from Block 197. The shopping needs of the community are adequately cared for by these business centers.

The amendment to the zoning ordinance to change Block 197 to a "D Business District" had been under consideration by the Borough Council and the Planning Board of Dumont for three or four years, according to the mayor. On November 26, 1952, it was submitted to the planning board, which unanimously approved it. On December 9, 1952, it was adopted by a unanimous vote of the governing body of the borough at a meeting at which no objection was made by any residents of the borough, although representatives of the other three boroughs strenuously opposed it. Section 4 of the basic zoning ordinance of the borough adopted in 1942 provided that "D Business District is primarily intended for the conduct of commerce, general business and the sale of commodities and all such uses shall be permitted." The section then goes on to prohibit manufacturing, ...


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