Goldmann, Freund and Foley. The opinion of the court was delivered by Foley, J.A.D.
[80 NJSuper Page 81] Defendants-appellants and cross-respondents (borough) appeal from that part of a judgment of the Law Division granting plaintiffs-respondents' and cross-appellants' applications to the zoning board of adjustment for
its recommendation of a variance from the municipal zoning ordinance. N.J.S.A. 40:55-39(d). Those parties in turn cross-appeal from that part of the same judgment dismissing their demand for a declaration that certain parts of an amendatory ordinance adopted in 1953 are invalid.
The land concerning which the controversy arises is owned in part by the Estate of Cornelia Sikkema, and in part by William and Jennie Sikkema (Sikkema). Glen Rock Realty, Inc. (Realty) is a contract vendee of the land, execution of the contract being dependent upon a determination of the legality of the prospective use intended by the vendee.
The land, consisting of approximately 3.5 acres, is roughly in the shape of a trapezoid and constitutes almost all of a small triangular area pointing south and located between the Erie Railroad tracks and Lincoln Avenue, in the extreme southwesterly section of Glen Rock. On the easterly side the trapezoid is bordered by the main line of the railroad right-of-way for its entire length -- 510.07 feet. The railroad tracks separate the subject property from the only industrial zone in Glen Rock, and the property had been a part of such zone until the passage of the 1953 ordinance. The industrial zone has been extensively developed for the purposes of business and industry. The railroad tracks accommodate a daily schedule of 40 passenger trains and an undetermined number of freight trains.
The southern border, near the apex of the triangle, runs east and west for a distance of 155 feet between the railroad tracks and Lincoln Avenue. There are two small lots south of the southerly line. South of these lots and beyond Diamond Bridge on Lincoln Avenue are properties which are used for both business and residential purposes. This area lies in Fair Lawn and is zoned for commercial uses.
On the westerly side, the property fronts on Lincoln Avenue for a distance of 427.63 feet. Lincoln Avenue separates Glen Rock from Hawthorne and Bergen County from Passaic County. Fronting on the Hawthorne side of Lincoln Avenue and opposite to the subject property there is a short strip
which Hawthorne has zoned as a residence "B" district. It is occupied by several small frame bungalows in some of which there are conducted nonconforming businesses -- landscape gardening, florist and plumbing. One block to the north along the Hawthorne side of Lincoln Avenue marks the beginning of a five-block strip zoned for business and used commercially.
The northerly line of the subject property runs east and west for 391.17 feet and parallels a street known as the Boulevard. On the southerly side of the Boulevard, adjacent to the property in question are several lots, some vacant and some used for residential purposes. The area north of the Boulevard on the Glen Rock side of Lincoln Avenue is zoned as an "A-2" residential district.
The property is level at grade but slopes sharply toward the railroad tracks and access to it is from Lincoln Avenue only.
For more than half a century the Sikkema family has used the property for a variety of business purposes as well as for residence. One portion of it is presently used by William Sikkema as a residence, and also for a well-drilling operation which requires the storage of large quantities of materials and equipment; the larger remaining portion lies vacant.
Under the Glen Rock zoning ordinance of 1929 the property was zoned for industry. This classification remained unchanged by a 1949 amendment. The ordinance was revised in 1953 and the property was rezoned and restricted to one-family residential uses. The constitutionality of this ordinance as it affects the Sikkema property is the determinative issue in the case.
It appears from the testimony of Allan B. Murray, defendant Mayor and, at the time of the 1953 rezoning, a member of the Borough Council, that William Sikkema and his attorney were present at the council meeting in 1953 when the revised ordinance was adopted. Sikkema ...