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Moriarty v. Pozner

Decided: March 21, 1956.

DANIEL J. MORIARTY, ET AL., PLAINTIFF-APPELLANTS,
v.
JACK POZNER, SAM POZNER, BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NORTH BERGEN, AND THE BOARD OF COMMISSIONERS OF THE TOWNSHIP OF NORTH BERGEN, DEFENDANTS-RESPONDENTS



On certified appeal from the Appellate Division of the Superior Court.

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

Heher

At issue here is the legal sufficiency of a variance permitting the construction of a "shopping center, containing retail stores, and the balance of the property to be paved and used for off-street parking for the patrons" of the center, on the lands in the Township of North Bergen zoned for residence use, known as Nos. 3101-3149 Hudson Boulevard, recommended to the governing body by the local board of adjustment by a resolution adopted December 28, 1954, and approved by a resolution of the governing body on January 5, 1955, all in the purported exercise of the power granted by N.J.S.A. 40:55-39(d).

North Bergen is an urban community. The subject property is a tract of 17 acres, to the west of the Hudson County Boulevard. A strip 100 feet deep running 370 feet along the Boulevard, constituting part of the easterly boundary of the property, is zoned for business; the remainder is classified as a "Second Residential Zone or District" closed to "business," "commercial enterprises," "manufacturing," "industrial enterprises," "nuisances per se," and "garages of any kind * * * upon any vacant lot." Both sides of the Boulevard are zoned for general business to a depth of 100

feet, and so used. The Boulevard on either side throughout the municipality is generally strip-zoned for business, to a uniform depth of 100 feet. This has been the general local legislative rule. Under the zoning ordinance, adopted in 1934 and amended in 1949 and 1951, the particular lands may be used for dwellings of any type or size and apartment use as well; the tract is suitable in size and otherwise for multi-story apartment units, with sufficient area for landscaping and parking. The allowance of the variance would extend the business use permissible on the Boulevard frontage to the whole of an area that has been used for commercial recreation purposes since 1898, popularly known as "Columbia Park," a nonconforming use. The commercial and business uses nearby are either confined to a business zone or constitute nonconforming uses protected by the statute. The locus is bounded on the north by a home for the aged and vacant lands forming a part of a commercial enterprise known as "Scheutzen Park," a carnival, picnic and bowling grounds; the western boundary is an "undeveloped" "paper street" known as Grand Avenue; and the southerly end abuts a street which in all seeming provides access to several highways, although respondents suggest that the want of direct approach to the Lincoln Tunnel depressed highway on the south is a factor of major importance. But the problem, if there is one, is certainly not irremediable.

The immediate community has not changed in character or use since the adoption of the zoning ordinance, save for diminution of the nonconforming Columbia Park use itself. The area immediately to the south and west is in the main undeveloped, but is zoned for residences; there is a first-class apartment house development a few blocks to the south, on the westerly side of the Boulevard; and there is a public housing development on the same side of the Boulevard, a short distance to the north, in Union City.

The topography of the locus is common to lands in the area on the west side of the Boulevard. Such slope as there is on the particular tract will not interfere with the erection and use of apartment dwellings. The contention contra is, in

brief, that the "only means of ingress and egress to the property is through or over the Hudson Boulevard business frontage; that the westerly approaches were cut off from any practical utility no matter what use was made of the property," and "to run an access road over the business frontage to service a possible rear residential development would not be conducive to good planning." Such is the view of the planning expert called in support of the proposed variance. He said also that neither North Bergen nor Union City zoning could be termed "part of a comprehensive plan"; the zoning ordinance adopted in 1934, he continued, "was not based upon a comprehensive plan as defined in the statute." It is urged that the "character of the neighborhood in general is business or commercial"; and the "only similarity between Columbia Park and areas north and south along the Boulevard, insofar as the possibilities of residential development of the Park are concerned, is that all property slopes off in the west or rear, but additionally Columbia Park was not only deprived of access from the west by the topography, but also was cut off from access by a highway on the south and business on the north," and "All other properties in the area had access to other streets running perpendicular to or parallel with the Boulevard."

Upon the first submission of the issue, the Law Division of the Superior Court remanded the cause for "further hearing" and a specification of the "reasons for the granting of the variance." The rehearing was had; and the variance was again recommended by the board of adjustment, on these grounds:

(1) It is "not feasible or practicable to subdivide the area for residential purposes" because of the "shape" of the "premises, being only 370 feet in width" on the Boulevard, "while it is 1022 feet on the rear and irregular in depth ranging for (sic) 628 feet to 872 feet," and the "only means of ingress and egress" are "over or through the Boulevard frontage, which is zoned for business to a depth of 100 feet"; (2) the "immediate neighborhood" as well as the premises in question "are presently devoted to business and commercial [21 NJ Page 206] enterprises and are not developed to any extent for residential purposes"; (3) the surroundings and the limited access "create special conditions peculiar to the lot, imposing a burden on the owners if the present restriction is enforced"; (4) a "great portion of the property * * * will be paved and used for off-street parking, and consequently the erection of the shopping center will not materially change the existing traffic situation"; (5) when the "present zoning ordinance was passed, shopping centers had not yet come into existence and, therefore, no provision was made for them," and under the "present zoning ordinance" "there is no area in which a planned shopping center can be constructed because of the fact that the Township is 'strip zoned' for business to a depth of only 100 feet, except in one or two isolated areas"; (6) an inspection of the locus "reveals that the location of the lot, its appearance and the atmosphere created by the surrounding uses made of the land, fit the pattern of the area for the development of the tract in question as a shopping center with off-street parking"; (7) the plans submitted to the board provide for the "erection of a brick, Colonial-type building, beautiful in design," with a "shrubbed" area, "thus enhancing the appearance of the neighborhood in general," and the "brightly-lighted used car lot presently on the Boulevard frontage of the property" will be eliminated, and the "public welfare will be served beneficially" by the demolition of the "existing unsightly structure" which because of age and "lack of maintenance over many years, as well as its use for large public gatherings, has made it a source of public concern ...


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