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Clary v. Borough of Eatontown

Decided: July 10, 1956.

EDMUND B. CLARY, PLAINTIFF-APPELLANT,
v.
THE BOROUGH OF EATONTOWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



Freund, Conford and Schettino. The opinion of the court was delivered by Conford, J.A.D.

Conford

[41 NJSuper Page 51] This is an appeal from a judgment of the Superior Court, Law Division, sustaining the validity, as against the plaintiff, of a zoning ordinance adopted by

the defendant borough November 10, 1954. The ordinance effects widespread revision of residential zoning throughout the municipality, principally by creating a scale of zones based upon minimum lot area and frontage. Some 58 acres of undeveloped land owned by plaintiff were placed in an R-3 residential zone, which requires a minimum lot area of 20,000 square feet and a 100-foot minimum frontage. The gravamen of the action is plaintiff's assertion that such a restriction on his property is unreasonable; that the character of most existing homes in the neighborhood and the size of the lots on which they are situated are such that it would be economically unfeasible to develop his property for residences on lots as large as 20,000 square feet and that the effect of the ordinance upon his property is consequently confiscatory.

Plaintiff also complains of the effect of the ordinance in restricting the utility of ten small building lots which he owns in what is known as the Chestnut Grove development, northwest of the 58-acre tract. These lots were placed by the ordinance in an R-4 residence zone calling for a minimum lot area of 11,000 square feet and a minimum frontage of 75 feet. The complaint is that the ordinance is unreasonable as to these properties because none of them can conform with all the requirements as to frontage, land area and side yard area.

Eatontown is a municipality of some six square miles in area, having a 1955 population of approximately 5,000. It is situated in Monmouth County, a part of the State which is experiencing rapid population growth, much of it through mass small-home residential developments. In 1940 its population was only 1,700, and in 1950 approximately 3,000. About one third of its land area is vacant and unused, except for occasional farming operations. The community may be described as primarily made up of middle class residents, homes having a value of over $20,000 being exceptional. Much, if not most, of the working population is employed either at nearby Fort Monmouth, the Eisner uniform plant at Red Bank, or at the Bendix plant on State Highway No.

35, which was erected within the last five years. The municipality is bisected in a north-south direction by State Highway No. 35 and east-west by State Highway No. 36. These highways, an approach spur to the Garden State Parkway, and two other thoroughfares have their confluence at what is generally known as the Eatontown Traffic Circle, situated at the geographical center of the municipality.

Wyckoff Road, a county highway, almost intersects the borough in a northeast-southwest direction, crossing both State Highways No. 35 and No. 36 about 1,000 feet northwest of the Eatontown Circle. The plaintiff's 58-acre tract (hereinafter referred to as the Clary tract) is situated on Wyckoff Road, being a rough rectangle whose southeasterly corner on Wyckoff Road is approximately four-tenths of a mile from its conjunction with State Highway No. 35. Its northeasterly corner on Wyckoff Road is approximately 1,500 feet from the connection of that thoroughfare with Broad Street, a state highway, also known as Eatontown Boulevard, which runs thence in a westerly direction on a bend and meets Route 35 at the business center of the town approximately a mile and a quarter from Wyckoff Road and Broad Street. Immediately north of the Clary tract and abutting Broad Street are two tracts of farm land known as the Maida property, aggregating approximately 30 acres. The easterly parcel lies in the angle of the Wyckoff Road-Broad Street corner. Between the Maida tracts is situated a small residential development known as Stillman Park. The Clary and Maida properties, together with a triangular area of some 40 acres lying on the east side of Wyckoff Road, with a frontage thereon opposite the Clary-Maida tracts of almost 2,000 feet, were assembled in the zoning ordinance to constitute a single 130-acre contiguous R-3 residence zone district. The triangular piece last mentioned is bounded on the southeast by Reynolds Drive, which abuts a golf course, and is partly developed with a few homes on lots large enough to comply with the R-3 zoning requirement. This is the only R-3 zone district in the half of the borough north of State Highway No. 36, that part of the municipality in

which its main business district lies and in which most of its population is settled. There is one other small R-3 zone district in the northwest corner of the borough, adjacent to the Borough of New Shrewsbury, and two large R-3 zone districts in the southerly half of the borough, one of these being bisected by Wyckoff Road and coming to within about 300 feet of the Eatontown traffic circle, the other situated in the southeasterly corner of the borough, adjacent to West Long Branch. There are two residence zones under the ordinance calling for larger minimum lot areas than the R-3 zone. These are the R-2 residence zone, calling for a minimum lot area of 32,000 square feet and a minimum frontage of 150 feet, and the R-1 residence zone, requiring a minimum lot area of one acre, with a minimum frontage of 200 feet. One of the R-2 zone districts is constituted by the golf course aforementioned, immediately east of the R-3 zone district in which the Clary property lies. There is another large R-2 zone district in the southeasterly segment of the borough, and there are two very substantial R-1 zone districts in the westerly part of the borough, bordering Shrewsbury Township.

The main thrust of plaintiff's attack upon the zone classification of the Clary property is bottomed upon the existence of five developments northeast, northwest and south of the property comprised of smaller residence plots. Most emphasis has been placed by plaintiff's witnesses on what is known as the Elkwood development, a 52-acre tract lying across Wyckoff Road east of the Maida property and bounded on the north by Broad Street and Monmouth Road. This consists of 193 small, ranch-type houses, most of which are on plots of 75 x 100 feet, some having garages and others not. This development was begun in 1950 and completed in 1954, and the average house and garage therein sold for $13,500. The most recent sales of some of these properties have been at about $14,500. Plaintiff concedes that these homes are attractive. Immediately east of the Elkwood development is a small group of better residences on larger lots, described as the Stirrup Lane development. One of plaintiff's real

estate experts estimated these homes to have a value of from $14,000 to $18,000. They were described as the homes of business executives. This development juts into the golf course aforementioned but is within plain sight of the Elkwood homes.

Immediately north of Broad Street and across the street from the Maida properties and Stillman Park is the Monmouth Park development. This consists of 77 houses on varying sized plots, most of which have frontages of 50 or 60 feet. There are, however, 16 houses on lots having frontages of 100 feet or greater. Most of the lots are 7,000 square feet in area. A real estate expert for plaintiff estimated the average value of the homes in Monmouth Park to be $12,500, but said that there were some which in his opinion were worth $16,000.

The Stillman Park development referred to previously as lying between the two Maida tracts and immediately north of the Clary tract consists of an attractive group of some 18 homes based upon a circle. Those of the plots which are built upon vary in acreage from 7,800 square feet to 51,000 square feet. In addition to the largest improved plot, there is one other substantially in excess of 20,000 square feet, and others ranging from 16,000 to 20,000 square feet, all improved with homes. The four homes within the circle are on plots of 14,300 square feet. Two other plots immediate contiguous to the Clary property are substantially in excess of 20,000 square feet but are not improved by homes, apparently because the terrain is too low. Plaintiff's realty expert values the homes in Stillman Park at from $14,500 to $15,000 but concedes that two of them are worth considerably more.

Northwest of the Clary and Maida properties is the Chestnut Grove development mentioned above. Most of this area has not yet been built upon. The lots which have been improved with homes, however, average 7,500 square feet in area. Plaintiff's expert gave them an average value of $12,000. Screening the Clary tract from Chestnut Grove is a heavy growth of trees and shrubbery.

Immediately south of the Clary tract is a 150-foot vacant strip of land described by the municipal representatives as a buffer zone. South of that is the development known as Norwood Homes, lying on three streets which branch off from Wyckoff Road. These comprise 65 homes, of similar structure, erected on plots varying from 6,600 square feet to 8,900 square feet. These, too, are described by plaintiff as attractive.

In addition to the argument based upon the smallness of the homes and lots in surrounding developments plaintiff contends that a factor further militating against the utility of the Clary tract for better-type homes is the unattractiveness of each of the road approaches to the property. He stresses that the highways which lead to the Wyckoff Road approach on the south have the usual highway appurtenances of gasoline stations, trailer camps, diners, and miscellaneous business establishments; that an approach from the north, via Broad Street, involves traversing the unattractive commercial center of the town on Broad Street. Finally, his argument dwells upon the consideration that Eatontown is predominantly composed of working-class people living in small dwellings and that they characterize the kind of prospect interested in an Eatontown home. The central theme of plaintiff's case is that it is not economically feasible to develop the Clary tract for residence purposes on lots of 20,000 square feet because a lot of that area would require a home of such value that the parcel would sell for from $20,000 to $25,000, a product assertedly not marketable in Eatontown under the surrounding developmental circumstances. It is contended, in effect, that the reasonable residential zoning of Eatontown must be approached from the standpoint of its modest status in the surrounding geographical region -- that the requirements of the region for better homes are adequately met by such nearby communities as Rumson, Fair Haven, Little Silver, and the Shrewsburys, which are characterized by higher-cost residential areas.

One realty expert for plaintiff, McGregor, who had sold most of the Elkwood homes, testified that land in the neighborhood

was worth $1,000 a quarter-acre and that a house which "would be put on a 20,000 square foot lot" on the Clary tract, "where the land would sell for $1,000 a quarter of an acre," would be "at least $20,000, maybe $25,000." He did not believe any developer would undertake the development of the Clary tract on that basis and testified he knew of builders who had lost interest in the property after it was rezoned. He conceded, on cross-examination, however, that the fact that he might not be able to sell the property for that type of development "doesn't mean a thing," that "somebody might do it," and that the plaintiff had never authorized him to sell the land to any one for any given price. He also conceded that he knew of instances in Monmouth County where homes in residential developments on lots of 100 x 200 feet had been sold for $16,000.

Another realty expert for plaintiff, Morris, testified that in his opinion, "on a lot 20,000 square feet there should be a house from $22,000 to $25,000," in order "to make it economically feasible." He did not think that it would be practicable to sell homes of that value on the Clary tract because of the proximity of the smaller homes in the Elkwood development. He acknowledged, however, that directly across Wyckoff Road from the Clary tract there were homes on plots in excess of 20,000 square feet which he would value at about $20,000.

Theodore McGinness, a member of the Eatontown Planning Board, clerk of the tax board, and engaged in the real estate business in Eatontown, was called as a witness by plaintiff, primarily to testify concerning assessment records. He testified that homes on 20,000 square foot plots in the Clary tract would not "readily sell" for from $20,000 to $25,000. Later, however, as a witness for the defendant, he stated it to be his opinion that the Clary tract could be developed on plots of 20,000 square feet for homes which would sell for from $16,000 to $18,000. He referred to two other residential developments on Wyckoff Road south of State Highway No. 36, on plots of 20,000 square feet, which were in process of development and selling at prices from $14,000

to $21,000. He also testified to a projected "Wynnewood Homes Development," for which a plot plan had been officially approved, to be erected on the easterly side of Wyckoff Road southeast of the Clary tract and within the triangular portion of the R-3 zone district here in question. We gather from the transcript that the lots are about 20,000 square ...


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