Clapp, Hall and Hegarty. The opinion of the court was delivered by Hall, J.s.c. (temporarily assigned).
[41 NJSuper Page 412] This is an appeal by the Borough of Carlstadt under R.R. 4:88-8 to review a determination of the Board of Public Utility Commissioners
that the erection of a replacement ground water tank by respondent Hackensack Water Company on lands in the borough zoned against such use "is reasonably necessary for the service, convenience and welfare of the public."
The board's decision was rendered pursuant to the authority of R.S. 40:55-50, a part of the zoning enabling legislation, which reads:
"This article or any ordinance or regulation made under authority thereof, shall not apply to existing property or to buildings or structures used or to be used by public utilities in furnishing service, if upon a petition of the public utility, the board of public utility commissioners shall after a hearing, of which the municipality affected shall have notice, decide that the present or proposed situation of the building or structure in question is reasonably necessary for the service, convenience or welfare of the public."
The water company, a public utility corporation, furnishes service to consumers in some 54 municipalities in northern Hudson and Bergen Counties. Its service area in the latter county covers the entire territory bounded by the Hudson River, the New York state line, the Saddle and Passaic Rivers, and the southerly boundaries of the Boroughs of Rutherford and East Rutherford. The method of distribution used in the various sections depends on the topography, which consists of a high area along the Hudson River from the Jersey City line to the state boundary, another small high area in the southwestern corner including parts of Carlstadt and Wood-Ridge, and the remainder and great bulk of the territory lying at a very considerably lower elevation, designated as the New Milford Low Service System. Generally speaking, this large low area is supplied by pumping from the company's main station in the town of that name, operated in conjunction with impounding and distributing reservoirs located at appropriate places, and the high areas by gravity from storage tanks situate at sufficient elevation. The supply and distribution system for the entire territory is integrated.
Since before the turn of the century the company has operated, as a part of this system, a pumping station with
accompanying facilities on premises it owns at a high elevation in the Borough of Carlstadt. This is the "situation" involved in the present proceeding. The plot of a little over half an acre is bounded on three sides by public streets with frontage of 200 feet on one and 125 feet on the other two, and on the fourth by private residential property. Located on the street lines at the northeasterly corner is a one-story brick pumping station, 32 feet by 13 feet. To the south thereof, close to the street line bounding the property on the east and similarly near the line of the private property adjoining on the south, is a steel water tank at ground level, 20.3 feet in height, 105 feet in diameter and holding 1,300,000 gallons. This was erected in 1899. It occupies almost half the plot area. On the westerly portion of the plot is an elevated steel tank, constructed in 1929, 100 feet in height and with a capacity of 250,000 gallons. The greater portion of this distance comprises an open framework of legs supporting the structure. The whole plot is fenced and landscaped.
This elevated tank supplies by gravity the high area in Carlstadt and Wood-Ridge and the ground storage tank, while also acting as a suction for the pumps pumping water into the high level tank, serves more importantly to sustain pressures and provide additional water at a high rate for the low service system in the company's southwest area in times of peak demand. The absence of an adequate supply of water in such a tank for such purpose would so reduce pressure in the low area as to practically deprive consumers there of all water service during high consumption periods. It is apparent that the three structures at this site are interrelated in function, and that the installation is an essential part of the entire system serving not only Carlstadt but surrounding communities.
The location of the plot in question is in the midst of the "A Residence" zone under the borough ordinance, one block from the Wood-Ridge boundary. This zone classification is designated for one and two-family dwellings. Carlstadt is described as a community built to the saturation point
to the extent of land suitable for residence purposes. Its population has remained stable with little increase for the past 25 years and its character is established. The neighborhood surrounding the company installation is of good quality consisting of modest residences closely built on rather small lots for one and two-family occupancy. Most of the homes are not of recent construction. From the physical evidence it would appear that most, if not all, were built since 1899 and some since 1929. While the record does not disclose the date of adoption of the zoning ordinance, it must have been subsequent to 1929 for it is conceded that the company's present structures and operation constitute a non-conforming use.
The company proposes to replace the present ground storage tank by a larger one on the same spot, ten feet less in diameter, but 60 feet high and with a capacity of 3,200,000 gallons. It would be of solid cylindrical design and roughly twice the height of neighboring houses. There is no question but that the structure would constitute an extension of a non-conforming use prohibited by the zoning ordinance (Borough of Rockleigh, Bergen County v. Astral Industries, Inc. , 29 N.J. Super. 154 (App. Div. 1953)), although its height alone is not violative of the ordinance limit of 35 feet, since this requirement is expressly made inapplicable to water tanks or standpipes.
After being unable to obtain a hearing on its application for a variance to the borough board of adjustment because of continued lack of a quorum (which borough officials testified unequivocally would not have been granted even if recommended), the company instituted the present proceeding in September 1955. Parenthetically it may be observed that prior application for a variance is not a necessary prerequisite to relief under the statute. The petition alleged necessity for the new tank by reason of rapidly increasing demands for water service in the southwestern portion of the system beyond the capacity of the present installation and asserted the location in question to be the best available in view of the topography.
Its supporting proofs were introduced before the board's hearing examiner through the testimony of the president and chief engineer. They showed a population increase of about 37% in the company's entire territory during the 15 years since 1940, a corresponding 50% increase in the number of water customers and a rise of about 70% in the average daily demand, which last year reached 56,800,000 gallons. In the southwestern area comprising the communities of Carlstadt, Wood-Ridge, Rutherford and East Rutherford, during the same period the increase in population was about 18%, with a 20% rise in the number of water customers, but with an average daily demand 72% greater. Much greater stress was laid, however, on the tremendous peak demands experienced during the summer of 1955 to evidence the need for immediate expansion of facilities. On July 22, 1955 the total demand on the system reached 96,600,000 gallons, the highest in history and at a ratio of 170% to the average daily demand. Between 7:00 and 8:00 P.M. on that day the hourly demand was at the rate of 164,300,000 gallons a day, also a record and at a ratio of 289% to the average daily demand. These maximum daily and hourly demands have been steadily growing greater for the past ten years without any indication when the rise will stop. The testimony was uncontradicted of the need for substantially greater water storage facilities at an adequate elevation in this southwestern section to meet peak demands and assure at such times continuance of service to consumers and proper protection in case of ...