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Finn v. Township of Wayne

Decided: January 8, 1959.

M. THOMAS FINN AND EVA O. FINN, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF WAYNE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT



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

Conford

Plaintiffs' "Statement of Question Involved" poses the issue before us as being whether the zoning ordinance of Wayne Township, as amended and now in effect, unlawfully prohibits their use of their property for a motor "trailer park." The main aspect of illegality pressed on the appeal is alleged unconstitutional discrimination in restricting plaintiffs' property to residential uses while nearby property of another has recently been rezoned to permit industrial uses. The Law Division held against the contentions of plaintiffs.

Wayne Township occupies an area of approximately 23 square miles in the southerly part of Passaic County. The great bulk of it is vacant land, zoned residential, much of it devoted to farming. There are three main highways, the Paterson-Hamburg Turnpike, running generally east-west in the northerly area; State Highway 46 (formerly 6), following the same course but through the southerly section; and Route 23, running north-south through the westerly part of the municipality. The Erie Railroad parallels Route 23 several hundred feet to the west. The southern and southwesterly boundary of the township is constituted by the Passaic River and its tributary, the Pequannock.

Some of the southerly area of the township, both north and south of Route 6, has been gradually coming into scattered industrial development in recent years. The actual present use status of lands in this part of the municipality is quite diverse, most of it still vacant, the remainder residential, farm land, commercial of diverse kinds, particularly along the highways, and industrial. Plaintiffs focus their

factual emphasis upon an arbitrarily delineated one-squaremile area bounded by Fairfield Road, which runs along the streams mentioned above, Route 46 and the Erie Railroad. It has most of the varied uses just mentioned. Under the basic 1949 zoning ordinance of the township, substantially all of it, as well as its extending counterpart south of Route 6, was zoned residential.

Plaintiffs acquired the land which is the direct subject of this litigation in 1952 and began shortly thereafter to develop it for use as a site for parking motor residence trailers -- more euphemistically known as a "trailer park." Such a use is not permitted in residential zones under the ordinance but is allowed in industrial zones. Plaintiff M. Thomas Finn was convicted of a violation of the ordinance for such use on March 16, 1955 in the local municipal court. An appeal thereof to the Passaic County Court is pending, undetermined, apparently awaiting the determination of this and other related litigation to be mentioned hereinafter.

Plaintiffs' land consists of an 18-acre parcel off Fairfield Road, about 1,300 feet north of Route 46. Its dimensions are roughly 1,200 by 500 feet. Access is over a 50-60 foot right of way from Fairfield Road bordering the property on the south. The front or west end of the tract is abutted by a 150-foot strip of land on Fairfield Road improved with a number of homes. Except where cleared for the trailer park plaintiffs' land is wooded.

The predominant use of Fairfield Road frontage, beginning with the 150-foot strip in front of plaintiffs' property already mentioned, and running southerly to Route 46, is one-family residential. This may also be said of so much of the backland as is improved, particularly in the Market Street-Main Avenue section.

The gist of plaintiffs' grievance is that their land is surrounded on three sides by that of Chemways Corporation, recently acquired, and all asserted to be zoned industrial under recent amendments of the ordinance. The contention is that plaintiffs are discriminated against by virtue of the township's refusal to include their property in

the rezoning to industrial, thereby leaving their property, so it is claimed, as an isolated residential-zoned pocket in an industrial-zoned environment. This projection of facts is regrettably misstated in an important respect. While Chemways owns land south, as well as north and east of plaintiffs' tract, the area south is still zoned residential, as is all the Fairfield Road frontage to Route 46. A review of the recent municipal legislative zoning history of this general area will be helpful.

The first substantial change since 1949 was a 1952 amendment encompassing a transfer from residential to industrial of roughly the eastern one-half of the square mile segment mentioned above, mainly along Route 23 and the Erie Railroad. This included a small piece of the back, or easterly end of plaintiffs' tract. In February 1956 came the amendment which is the crux of plaintiffs' case. Chemways Corporation had just acquired a large, deep tract immediately adjacent to plaintiffs' property on the north for industrial purposes, and the township amended the ordinance at Chemways' request to transfer this parcel to the industrial zone. Chemways then proceeded to build an industrial plant on a part of it. That company later also acquired the parcel abutting plaintiffs' property on the south but has not built on it, and it is still zoned residential, as noted above. Considerable acreage abutting the Chemways piece on the north along Fairfield Road (actually in substantial residential use) was left in the residential zone, as well as everything south of Chemways along that thoroughfare, as already noted. A glance at the zoning map, as brought up to date by the recent amendments, thus shows that, far from the zoning picture plaintiffs paint of their property as an isolated residential-zoned district in a surrounding expanse of ...


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