On appeal from Superior Court, Appellate Division, whose opinion is reported in 56 N.J. Super. 296.
For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Burling, J.
This case arises out of the Montclair Board of Adjustment's denial of plaintiffs Mayers' application for a zoning variance under N.J.S.A. 40:55-39(d). Mayers are purchasers from plaintiff Osborne & Marsellis Corporation under a contract of sale concerning the land in question, which contract, however, is conditioned for performance upon the Mayers' obtaining permission to conduct upon the land a business similar to that presently carried on by them on a nearby lot. The business involves the purchase of old cars, some of which are resold in the condition purchased, others of which are demolished, their usable parts salvaged and sold, and the remainder cut into scrap and sold in that form. In a portion of its findings not appealed from, the board of adjustment described the proposed use in the following language:
"That according to testimony given by the applicants, the nature of the use which they desire to conduct on the premises in question has its origin in the purchase by them of approximately 700 used, wrecked or unsalable autos annually; that some of the used cars are resold as is to private purchasers; that the unsold portion of such unsalable used cars along with the wrecks and the unusable cars are reduced to scrap, segregated into different classes of metals and non-metallic materials and held for sale at prevailing published scrap prices to various established tonnage dealers in these scrap commodities; that in such reduction certain used but usable parts such as rear ends, transmissions, radiators, generators, motors, aluminum crank cases, starting motors, wheels, tires, etc. are salvaged and set aside, as is, for resale, piece by piece, to individual private purchasers for use as parts replacement, particularly on old model or obsolete cars; that the ferrous, metal scrap, such as frames and bodies, a considerable tonnage for which there is a minimum or no individual buyer demand, is reduced to handling or charging box size by oxy-acetylene cutting; that applicants testified that a sizeable number of truck loads of such scrap are taken away every three months by dealers in steel scrap, cast iron scrap, brass, aluminum, copper and lead; that scrap tires and rubber are removed monthly. That though the storage and subsequent sale of some of the used automobiles and some of the used parts, piece by piece, to private individuals for their own particular use, is an appreciable part of the business from a gross dollar volume standpoint, nevertheless the used car and used replacement part of the business is incidental to the primary and continuing function of the
enterprise, viz.: the reduction of used, wrecked or unusable cars into ferrous, non-ferrous and non-metallic scrap for subsequent sale at prevailing prices to various established tonnage dealers in these commodities; that nonusable non-metallic materials such as upholstery, cushions etc. are accumulated and burned by open fires on the premises; that though the applicants testified that they did not use oxy-acetylene torches to cut metallic scrap, nor burn non-salable or metal materials on windy days, because of the inherent danger, nevertheless, that in order to prevent undue accumulation of such materials and because of the very nature of the business, the burning of this nonsalable materials must be a continuous operation regardless of climatic conditions."
From the board of adjustment's denial of the application for a variance under N.J.S.A. 40:55-39(d), the Mayers appealed to the Superior Court, Law Division, filing a complaint in lieu of prerogative writs, in which the Osborne & Marsellis Corporation joined as plaintiff. That court reversed the board's determination and ordered the board to grant the requested variance on the condition that plaintiffs did not engage in the burning described above. An appeal was prosecuted to the Superior Court, Appellate Division, which court held that the board's denial was improper but for different reasons than expressed by the trial court. In addition, the Superior Court, Appellate Division, recognizing that the ultimate decision concerning a requested variance under N.J.S.A. 40:55-39(d) rests with the local governing body, limited its mandate to require the board to recommend approval of Mayers' application pursuant to N.J.S.A. 40:55-39(d). 56 N.J. Super. 296 (App. Div. 1959). We granted certification. 30 N.J. 601 (1959).
The present owner of the land in question, the Osborne & Marsellis Corporation, rents two buildings located on the land to a construction company and uses the remainder of the property as a lumber yard. In the past, the land has been utilized as a storage place for coal, fuel oil, and miscellaneous building supplies. The town refers to all of these as seemingly nonconforming uses. The property has been for sale for nearly three years, but the plaintiffs' offer was the first one acceptable to the present owner.
The evidence reveals that the land in question, located in Montclair, is an irregular tract consisting of slightly over two acres. Its southern boundary is formed by Bloomfield Avenue, an east-west traffic artery which, at its line of contact with the land in question, rises on a viaduct so that the street level is nearly forty feet above the abutting land. On the west of the property are railroad tracks. North of the railroad tracks and on the west side of the property is Bay Street. The property abuts on Bay Street only a short distance, but this portion of the property constitutes the sole means of access to a public road. On the northern boundary of the property in question there is land on which is located a frame dwelling house and the facilities of a heating and airconditioning contractor's business. The eastern boundary of the property, at the point closest to the land abutting on the north and proceeding southward over half the distance to Bloomfield Avenue, consists of Toney's Brook, a small creek maintained as part of Montclair's drainage system. At that point, the eastern boundary crosses Toney's Brook and thence continues southwardly to Bloomfield Avenue.
Except for that portion within 100 feet of Bloomfield Avenue, which portion is part of a C-1 (commercial) zone of the zoning ordinance, the property in question is located in an M-1 (light industrial) zone of the ordinance. Concerning M-1 zones, the applicable zoning ordinance states:
"In M-1 Zones, no building or premises shall be used for any of the following specified trades, industries or uses.
(44) Any open land use such as yards for the storage of material of any kind, ...