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Protokowicz v. Lesofski

Decided: October 13, 1961.


Collester, J.s.c.


The plaintiffs bring this action seeking to enjoin an alleged nuisance, an alleged violation of the zoning ordinance, and to recover money damages.

The plaintiffs are either property owners or tenants who reside in close proximity to the property owned by the defendants at 113 Avenue E, Bayonne, New Jersey. Both plaintiffs and defendants reside in a district which is zoned by the municipality as a residential zone. It is conceded that when the original zoning ordinance was adopted in May 1945 the defendants were operating a coal business at their premises, and as a result of the adoption of said zoning ordinance the operation of the business became a nonconforming use which could be continued in operation as of right, pursuant to R.S. 40:55-48. The defendants claim that their original business was not only for the sale, temporary storage and delivery of coal, but also oil. They further contend that in addition to the coal and oil business they also conducted a trucking business on the premises prior and subsequent to the adoption of the zoning ordinance in 1945. Plaintiffs dispute this contention.

It is undisputed, however, that since at least the summer of 1960 defendants have ceased to operate their coal and

oil business and the business now being conducted is entirely devoted to trucking.

The plaintiffs in this action seek injunctive relief, contending that the operation of such business constitutes a nuisance which unreasonably interferes with and causes injury to the health, normal private comforts and safety of the plaintiffs. They further contend that the business operations of the defendants constitute a violation of the requirements of the municipal zoning ordinance in that they have expanded and enlarged their business beyond that legally authorized under their nonconforming use which was established by law in 1945. They also seek damages which allegedly resulted from the depreciation of their properties.

The defendants deny that their business operations constitute a nuisance warranting injunctive action. They claim that when the 1945 ordinance was adopted they were operating a coal and oil business together with a trucking business; that within the last two years they have ceased to operate the coal and oil business but are now solely engaged in the trucking business which was their right under the nonconforming use provided for under the statute. They deny that plaintiffs have any legal claim for damages.

Defendants also contend that plaintiffs' action is barred by reason of laches and that the issue is res adjudicata by reason of a decision rendered by the Bayonne Municipal Court in 1959.

Upon a full consideration of all the evidence presented, this court makes the following finding of facts:

The defendants, Frank Lesofski and Anna Lesofski, were engaged in the coal, oil and trucking business when they purchased their property located at 111-113 Avenue E in Bayonne in 1938. When the municipality enacted its original zoning ordinance in 1945 the defendants, under the law, became possessed of a nonconforming use to operate said business despite the fact that the surrounding properties on the west side of Avenue E were zoned for residential purposes known as an "A" residential zone.

The evidence shows that the coal business operated by defendants at the site consisted of the transportation by truck of coal from the mines of Pennsylvania to defendants' yard, where it was stockpiled. A fence enclosed the yard of the defendants. At first this coal was transferred by shoveling into bags, which were then delivered by truck to defendants' customers. Shortly thereafter a gasoline conveyor was set up in defendants' yard to eliminate moving of the coal by hand. Trucks used in the coal business were powered by gasoline.

The trucks operated by defendants were one delivery truck, one trailer truck used to transport coal from the mines, one oil tank truck, and a fourth truck which was not operated in the business but served as a reservoir for auto parts.

I am also satisfied from the evidence presented that a part of the defendants' business in 1945 and thereafter was a trucking business -- some undoubtedly undertaken by the trailer on its way west to the mines in Pennsylvania.

The evidence shows that as time passed by the coal business decreased and the trucking business increased. The coal business ceased entirely after March 1960. On the other hand, the trucking business increased to a point where defendants' primary, if not sole, work today is the transportation of fill, earth and the like for construction projects. Defendants' premises today serve as a depot for the storage and repair of their trucks.

The evidence shows that in 1954 the defendants purchased for use in their trucking business a diesel engine powered dump truck, and that in 1957 a second diesel -powered truck was acquired.

It is important to consider the evidence showing the location and size of the property on which defendants' business is operated. It consists of a two-family residential dwelling inhabited by two families, a store front, and a vacant yard in the area between defendants' property and that owned by the plaintiff, ...

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