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City of Passaic v. Reed

Decided: November 28, 1961.

CITY OF PASSAIC, A MUNICIPAL CORPORATION, PLAINTIFF,
v.
H. B. REED & COMPANY, A CORPORATION, DEFENDANT



Grimshaw, J.s.c.

Grimshaw

[70 NJSuper Page 543] The City of Passaic instituted this action against defendant H.B. Reed & Company, seeking to permanently enjoin the defendant from operating its

plant in violation of the city's ordinances and to revoke a certificate of occupancy allegedly violated by the defendant. To be more specific, the City of Passaic alleges in the third count of its complaint that Reed violated sections 7 and 8 of Passaic's 1940 zoning ordinance, the applicable language of which provides that:

"SECTION 7. BUSINESS 'B' DISTRICTS

(a) USE: -- Business 'B' Districts are primarily for bulk commerce and light industry. In addition to the uses permitted in Residence Districts 'A', 'B', and 'C', and in Business 'A' Districts, the following uses shall be permitted in Business 'B' Districts: * * * any process of assembly or manufacture utilizing less than one hundred horsepower if such process does not constitute a nuisance by reason of odor, noise, dust, or smoke, or unusual public hazard; and all other uses not specifically prohibited hereinunder.

PROHIBITED USES -- * * *

(1) All uses prohibited in Industrial Districts.

SECTION 8. INDUSTRIAL DISTRICTS

PROHIBITED USES -- The following uses shall be prohibited in the Industrial Districts:

(2) All processes of assembly, manufacture, or treatment that constitute an unusual hazard of fire, explosion, or chemical fumes and gases.

(3) All processes of assembly, manufacture, or treatment of unusual nuisance character when placed in the vicinity of business or residential neighborhoods."

The second count of the city's complaint alleges a violation of a nuisance section in another ordinance which provides:

"Whatever is dangerous to human life or to health, whatever building or part, or cellar thereof is not provided with adequate means of ingress and egress or is not sufficiently supported, ventilated, sewered or drained, cleaned or lighted; and whatever renders the air, food or water unwholesome, are hereby declared to be nuisances and are prohibited."

Finally, the city, in its first count, alleges a violation of section 34.3 of Passaic's zoning ordinance which was

adopted on April 30, 1955, and which permits the following uses in an M-1 zone:

"Wholesale, manufacturing, and light processing uses from which no smoke, dust, fumes, gas, noxious odor, or other atmospheric effluence is disseminated beyond the boundaries of any lot on which such use is situated; which constitutes no unusual hazard of fire or explosion; and which produces no noise exceeding in intensity and frequency the noise of street and traffic at that point."

The present site of Reed's plant was purchased from the City of Passaic in 1944. The property at that time contained coal pockets and was known as the Kaplin Coal property. Under the 1940 zoning ordinance of the City of Passaic, Reed was located in a Business B District and the immediate area surrounding the Reed plant was partly a Residence C District and partly a Business A District. Under Passaic's 1955 zoning ordinance, Reed's location was reclassified as an M-1 use district and the area surrounding Reed's plant was redesignated partly Commercial 1 and partly Residence 60.

Reed's present operation, and its operation under the 1940 and 1955 zoning ordinances in question, is the processing and manufacturing of roofing granules. Reed receives unburned coal or coal slag which is the waste product of a combustion process. The coal slag is delivered to the Reed premises by trucks and is coated with a thin oil to reduce the possibility of any dissemination of a powdered substance found in the raw materials. From the open and partially enclosed stockade where the coal slag is dumped, it is carried by a vertical conveyor to a rotary kiln where it is dried. The slag is then crushed by machine, screened and sorted for size on vibrating screens and blasted by steam to separate the dust from the end product. The product is also treated with paraffin oil ...


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