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Schoelpple v. Township of Woodbridge

Decided: February 24, 1960.

ERIC SCHOELPPLE, MARY SCHOELPPLE, AUGUSTINE LAVIN, HELEN LAVIN, JOHN BALLEK AND JOAN BALLEK, PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF WOODBRIDGE, A MUNICIPAL CORPORATION, AND MAR-RAY INC., A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS



Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Plaintiffs appeal from the judgment of the Superior Court, Law Division, upholding a variance granted under N.J.S.A. 40:55-39(d) to Mar-Ray Inc. to build an A. & P. supermarket in a residence zone.

The premises for which the variance was granted are known as Lots 28, 12 and 13 in Block 414 on the Woodbridge tax maps. They are described as follows:

(a) Lot 28 has a frontage on the westerly side of St. George Avenue of 315.16 feet.

(b) Its southerly boundary extends 722.82 feet in a westerly direction parallel to North Hill Road.

(c) The northerly boundary extends 376.20 feet from St. George Avenue, parallel to the southerly line to a point, and then southwesterly 423.72 feet to its intersection with the southerly line.

(d) Lots 12 and 13 have a total width of 50 feet fronting on Chain O'Hills Road, and extend southerly approximately 200 feet to Lot 28.

The entire tract contains 3.656 acres. Abutting this tract are residence lots upon which dwellings exist, those fronting on North Hill Road being 125 feet deep and those fronting on Chain O'Hills Road being about 200 feet deep. Within a radius of two miles there are nine other supermarkets.

St. George Avenue is "strip zoned" for business to a depth of 100 feet. The remainder of lot 28 and all of lots 12 and 13 are in an area zoned as "Residence B." In this zone there are permitted, in addition to dwellings, boarding houses and rooming houses for not more than five paying guests, hotels, churches, schools, public libraries or public museums, clubs, philanthropic institutions other than correctional institutions or asylums, central telephone exchange buildings, parks and playgrounds, and farming, truck gardening, nurseries or greenhouses.

In addition to building the supermarket, which will contain about 15,000 square feet, the applicant intends to pave all of the property (except the half-acre triangle formed at the westerly end of lot 28 by the intersection of its side

lines) to provide a 2 1/2-acre parking area for 300 automobiles and (over lots 12 and 13) a driveway from the parking area into Chain O'Hills Road. The parking area will be illuminated with mercury vapored lamps. The store will be open every day until 9 P.M., on Friday until 10 and on Saturday until 6 P.M. The applicant plans to build a rustic fence about the boundaries of the parking area and the driveway into Chain O'Hills Road.

After the briefs were filed in this appeal the Supreme Court decided Andrews v. Board of Adjustment of the Township of Ocean , 30 N.J. 245 (1959). At the oral argument defendants took the position that the Andrews case (especially as interpreted in the dissenting opinion) is completely dispositive of this appeal. It has been pointed out, however, that the dissent is not to be taken literally. Sussna, "Zoning in Transition ," 82 N.J.L.J. 473, 480 (1959); Cunningham, "Control of Land Use in New Jersey ," 14 Rutgers L. Rev. 37, 92 (1959); cf. Cardozo, "Law and Literature ," 14 Yale Review 699, 715 (1925). As Professor Cunningham said, Andrews is important only because it marks "[t]he court's return to the philosophy of Ward v. Scott ," 11 N.J. 117 (1952) (presaged by Grundlehner v. Dangler , 29 N.J. 256 (1959)) after the "temporary aberration" of Ranney v. Istituto Pontificio Delle Maestre Filippini , 20 N.J. 189 (1955), and the "clear retreat" of Moriarty v. Pozner , 21 N.J. 199 (1956). Cunningham, "Control of Land Use in New Jersey," supra , at pp. 88, 89, 91.

The "philosophy" of Ward v. Scott referred to by Cunningham is stated in Andrews as follows: that "although hardship may constitute a special reason" for a variance under N.J.S.A. 40:55-39(d), it does not "exhaust the subject" and is not an essential prerequisite to its grant. There may be "special reasons" other than hardship but "no definition of 'special reasons' has been attempted beyond the reference [in Ward v. Scott, supra , 11 N.J. , at pages ...


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