Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Defendant appeals from a judgment of the Law Division ordering it to grant plaintiffs a variance on conditions therein imposed by the trial judge.
Plaintiffs Mayer own and operate an automobile wrecking business at 2 Bloomfield Avenue, Montclair, and at 988 Bloomfield Avenue, Glen Ridge. These addresses are on the southwest side of Bloomfield Avenue in the vicinity of the premises here involved. The Mayers have contracted with plaintiff, The Osborne & Marsellis Corporation, to purchase from the latter a tract of land located near their present place of business, but on the opposite, or northeast side, of Bloomfield Avenue, and entirely within the Town of Montclair.
The northeasterly side of Bloomfield Avenue is strip zoned for C-1 commercial use under the Montclair zoning ordinance. The strip along the northeasterly side of Bloomfield Avenue is 100 feet deep and reaches from the Glen Ridge town line approximately 2,200 feet into Montclair.
The area of the tract in question is approximately 2.1 acres. It is located in the Montclair M-1 use zone, except for a quadrangular section which fronts on Bloomfield Avenue for a distance of approximately 75 feet. This latter section lies within the C-1 use zone strip.
Bloomfield Avenue, at the frontage of the property in question, bridges a stream known as Toney's Brook, which is used by the municipality for drainage. As a result, the
Bloomfield Avenue frontage of this property (its southerly boundary) is approximately 35 feet lower than the elevation of the roadway. The westerly side of the property is bounded by the right of way of the Lackawanna Railroad; the easterly side by Toney's Brook; and the northerly side by commercial property. Access to the tract is from Bay Street, along its easterly boundary, via a driveway approximately 37 feet in width. This entrance is the only direct access to the property from a public street. The present uses in the neighborhood include residential, commercial and industrial uses.
The Mayers applied to the board for a use variance recommendation under N.J.S.A. 40:55-39(d), there being some question whether they could properly conduct their business on these premises. The board denied their application. They then filed a complaint in lieu of prerogative writs and secured the judgment under appeal. The matter was submitted to the trial court, with briefs, on the record before the board.
After the matter was submitted to the trial court, Montclair amended § 23 (44) of its M-1 zone ordinance, striking therefrom a phrase which would permit the board of adjustment to grant a permit to use lands in that zone for open storage. Also during this period, the board moved to enlarge the record to include a letter from the borough attorney of Glen Ridge to the New Jersey Air Pollution Control Commission, in which the town, through its attorney, registered a complaint concerning a smoke nuisance allegedly originating from plaintiffs' present place of business. The trial court denied the motion to enlarge.
The board argues that (1) the court could not pass upon the validity of the ordinance because the town was not a party to the action; (2) any objection to the validity of the Montclair zoning ordinance, § 23 (44) is moot, because the amendment cured the defect; (3) the operation of an automobile wrecking business is prohibited by the ordinance in both C-1 and M-1 zones; (4) the special reasons advanced
by plaintiffs in support of their request for the recommendation of a variance are not valid reasons; (5) plaintiffs failed to prove that the business would "secure safety from fire, * * * promote health and general welfare, * * * conserve property values, * * * etc. "; (6) the use of the premises would not be a valid continuance of the present ...