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Yahnel v. Board of Adjustment of Jamesburg

Decided: June 20, 1963.

ETHEL YAHNEL, JACK AND IRMA SAUERMAN AND RUDOLPH AND MARY ANN WOLFINGER, PLAINTIFFS-APPELLANTS,
v.
BOARD OF ADJUSTMENT OF JAMESBURG, N.J., MAYOR AND BOROUGH COUNCIL OF JAMESBURG, N.J., FRANK PERGOLA, BUILDING INSPECTOR OF JAMESBURG, NEW JERSEY BELL TELEPHONE COMPANY, A CORPORATION OF NEW JERSEY, AND MICHAEL AND ROSE SEMINARA, DEFENDANTS-RESPONDENTS



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

The Jamesburg board of adjustment recommended and the borough council approved a variance from the zoning ordinance to permit the construction in an "A" residence zone of a one-story brick and masonry building by the New Jersey Bell Telephone Company for the maintenance of equipment to provide dial telephone service in the Jamesburg area. Neighboring residence owners on the street involved, Forsgate Drive, brought an action to set aside the variance, and appeal from a dismissal of their complaint by Judge Molineux, sitting temporarily in the Law Division.

There were two hearings before the board of adjustment in this matter. The initial hearing, in August 1961, on an application for a variance "for special reasons" pursuant to N.J.S.A. 40:55-39(d), resulted in a recommendation for a variance and an approval thereof, by board and council respectively, followed by a challenge of that action by suit in the Law Division. That court found an absence of adequate record and findings by the board of adjustment and remanded the matter to the board to supply the deficiencies. Thereupon a new hearing was held March 29, 1962, and comprehensive findings were arrived at and embodied in a resolution of recommendation. After approval thereof (with conditions) by the borough council, the Law Division filed an opinion and entered the judgment of dismissal from which the appeal herein has been prosecuted. Yahnel v. Bd. of Adjust. of Jamesburg , 76 N.J. Super. 546 (Law Div. 1962).

Solely for the purpose of better understanding the evidence of record and matters stipulated, on which alone our considerations must be based, we have inspected the property in question and the surrounding neighborhood.

The lot in question is a rectangular vacant tract 258 feet in depth by 100 feet in width situated on the southerly side of Forsgate Drive. It is owned by Seminara and optioned for sale to the telephone company. It lies between two residences, one to the east owned by plaintiffs Sauerman, the other to the west owned by plaintiff Yahnel, who personally bore the brunt

of the opposition to the application before the board, appearing there pro se. All three of the lots mentioned have the same depth. The Sauermans', however, has a frontage of 201 feet; Yahnel's, 100 feet. West of the Yahnel home on the southerly side of Forsgate Drive lie six other residences on lots with frontages of from 35 feet to 95 feet, all but one with depths of 145 feet. West of these homes the southerly line of Forsgate Drive is intersected by the easterly line of Perrineville Road. All eight homes mentioned are rather old and most of them of modest size. The Yahnel and Sauerman rear yards are attractive areas, with trees and plantings. The row of homes mentioned (along with the locus in quo) occupies the whole block on the southerly side of Forsgate Drive between Perrineville Road on the west and Lake View Road on the east, the latter being a short thoroughfare serving as an entrance to a county park which lies to the rear of these homes on Forsgate Drive and provides an attractive vista from the rear yards of these properties. Forsgate Drive has its easterly terminus about 100 feet or so east of Lake View Road, there running into Railroad Avenue, a principal commercial thoroughfare of the borough, zoned for business. Looking easterly from in front of the property in question toward Railroad Avenue the view is dominated by a large 3-story industrial building on the easterly side of Railroad Avenue.

While the southerly side of Forsgate Drive is zoned "A" Residence, restricted to use for one-family homes on frontages of at least 75 feet (five of the eight present homes are nonconforming), home occupations, public schools and churches, the northerly side of the street for the most part is zoned "B" Residence, permitting, in addition to "A" Residence uses, four-family residences, hospitals, schools generally, and playgrounds. The property at the northwest corner of Forsgate Drive and Railroad Avenue is zoned Business, being part of a "strip" business zone on Railroad Avenue. That property is referred to in the proofs as the DiGangi property, now used for an ice-cream stand and attendant parking space. At the time of the hearing herein, however, that parcel was the site

of a rambling, one-story multi-family dwelling scheduled to be and in fact demolished shortly thereafter. (Exhibit A-10 shows the former building, not the ice-cream stand.) Proceeding westerly along the northerly side of Forsgate Drive from the DiGangi property are found, directly across the street from the locus in quo and the Yahnel home, a vacant, uneven triangular tract of land, and then the rear of a cleaning plant and of a dress factory, both properties running through from Willow Street to Forsgate Drive, those streets forming an acute angle intersection at that point. Closely visible from the locus in quo behind the vacant tract mentioned are the rear yards of small residences fronting on Willow Street. Gatzmer Avenue, coming from the north, also meets the intersection of Willow Street and Forsgate Drive. Visible from several of the homes afore-mentioned on the southerly side of Forsgate Drive are a service station and launderette at the northwest corner of Gatzmer Avenue and Forsgate Drive, as well as a combination confectionery-food market on the opposite corner of Gatzmer Avenue and Willow Street. All of the afore-mentioned commercial operations (except that on the DiGangi property) are nonconforming uses in a "B" Residence zone, antedating the 1950 zoning ordinance. However, along with the back yards of the Willow Street homes, they dominate and spoil the view (from a residential standpoint) from the front of the row of homes on the southerly side of Forsgate Drive mentioned. Obviously alluding to such nearby uses, plaintiff Sauerman referred to them as "blights" and said he expected them to be "alleviated," but he did not explain when or how.

The building which the telephone company seeks to erect on the property in question will, according to the rendering submitted to the board of adjustment, be an attractive, off-white brick exterior, one-story structure, with decorative face-panelling on the front wall at the entrance. It is to be set back 50 feet, with a lawn maintained in the front. The general effect is of a neat, modern laboratory-type or office building. There are to be no offices here, however. A 12-foot driveway will

lead to a paved parking area in the rear, 60 feet in depth. The remaining 100 feet of rear yard will be left unpaved. There will be four employees regularly stationed in this building, but in emergencies others may be there temporarily. The general public will have no occasion to visit this building.

The decision to construct this facility was taken by the telephone company on the basis of a survey of present and reasonably prospective telephone requirements of the Jamesburg area. This is to be a dial central office to replace, we gather (the testimony is not too clear), an existing manual office housed in a building several blocks away. The company's technical representative at the hearing, Mr. Lewis, testified that the "optimum" location for such a dial office should be at the "wire center" of the area. This means that location which results in the greatest equalization of transmission load, so as to afford all subscribers in the area served reasonably adequate transmission. Lewis testified that engineering studies indicate that the wire center had a radius of 200 to 300 feet, but he conceded, on cross-examination, that it would extend 400 feet. The locus in quo was described as having been found to be the only available vacant land within the wire center suitable for purposes of construction of the dial office, and the most desirable location within that area for the purpose. Suitability, according to Lewis, involved, in addition to location, factors of size, shape, topography and cost.

The telephone company did not undertake to catalogue all the properties it had considered for this function or to detail why it had found them all unsuitable except the subject property, but as to several concerning which Lewis was specifically interrogated on cross-examination, he stated in each instance that the property was unsuitable. As to others mentioned, he professed to have no knowledge. The nearby DiGangi site on Railroad Avenue was said to be inadequate as to size. The Collins property on Gatzmer Avenue, for which the telephone company had previously obtained a variance for this purpose, was described as "not suitably available." The cross-examiner did not press to find out why. (The minutes of the board on

the original hearing indicate title could not be cleared to the Collins property.) The existing manual office of the company was also said to be an inadequate site for this purpose. The objectors produced only one witness, Mr. DiGangi, concerning the availability of other property. He said his property was for sale. The objectors had no competent evidence as to the ...


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