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Wulster v. Borough of Upper Saddle River

Decided: August 2, 1956.

HENRY L. WULSTER AND K. ELIZABETH WULSTER, PLAINTIFFS-APPELLANTS,
v.
BOROUGH OF UPPER SADDLE RIVER, DEFENDANT-RESPONDENT



Francis, Hughes and Knight. The opinion of the court was delivered by Francis, J.A.D.

Francis

The governing body of the Borough of Upper Saddle River declined to grant a permit to plaintiffs to remove a large quantity of soil from a tract of land owned by them. The Law Division sustained the refusal.

On September 9, 1954 an ordinance was adopted to regulate and control the removal of soil from land within the borders of the borough. Section 1 provides:

"No person shall excavate or otherwise remove soil for sale or for use other than on the premises from which the soil shall be

taken, except in connection with the construction or alteration of a building on such premises, and excavation or normal grading incidental thereto, without first having procured permission therefor from the Governing Body."

Section 2 proscribes consideration of a request for permission until the owner of the premises files with the borough clerk a written application together with a map of the premises "showing the contour lines and proposed contour grades resulting from such intended removal of soil in relation to the topography of the premises." The proposed contour lines and grades are made subject to inspection and approval by the council.

Section 3 sets forth the matters to be taken into account in passing upon the application. The governing body is required to consider the public health, safety and general welfare and particularly the following factors:

"a. Soil erosion by water and wind.

b. Drainage.

c. Soil fertility.

d. Lateral support slopes and grades of abutting streets and lands.

e. Land values and uses.

f. Such other factors as may bear upon or relate to the coordinated, adjusted and harmonious physical ...


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