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Tidewater Oil Co. v. Mayor and Council of Borough of Carteret

Decided: July 23, 1963.

TIDEWATER OIL COMPANY, A CORPORATION, GEO. D. EMERY COMPANY, A CORPORATION, AND ZOLTON YUHASZ AND FLORENCE YUHASZ, HIS WIFE, PLAINTIFFS, AND M & T CHEMICALS, INC., INTERVENOR,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF CARTERET, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, AND EDWARD ZANAT, BUILDING INSPECTOR OF THE BOROUGH OF CARTERET, DEFENDANTS



Furman, J.s.c.

Furman

The zoning ordinance of the borough of Carteret, enacted May 8, 1963, is under attack for constitutional and statutory flaws. The plaintiffs are the owner and the contract purchaser of premises fronting on the Arthur Kill in the Heavy Industrial B Zone and two individual citizens and taxpayers. The intervening plaintiff is the owner of premises adjoining the plaintiffs' in the B zone, which it has listed with real estate brokers for sale as an industrial property. The present land uses are a lumber business on the plaintiffs' property and a varied metallurgical and chemical industry on the intervenor's property, including detinning of tin scrap and manufacture of organic solvents. Plaintiff Tidewater Oil Company proposes to operate a petroleum storage tank terminal.

The Borough of Carteret is four square miles in area, with a population in excess of 20,000. Its easterly boundary is the Arthur Kill. Its northerly boundary is the Rahway River. The Arthur Kill, dividing New Jersey and Staten Island,

has a dredged 35-foot channel at or near the pier line on the Carteret shore. The Rahway River has a mean depth of 25 feet for a short distance upstream from its junction with the Arthur Kill. Thereafter its channel adjoining Carteret is four to nine feet and not navigable by ocean-going tankers.

The borough enacted its first zoning ordinance in December 1958. The Heavy Industrial Zone comprised the entire waterfront along the Arthur Kill and the waterfront along the Rahway River from the Arthur Kill west to the New Jersey Turnpike. While the district varied in depth inland from the waterways, most of its southerly portion extended 1,000 to 2,000 feet from the Arthur Kill to Roosevelt Avenue and most of its northerly portion extended about 3,000 feet from the Rahway River to Roosevelt Avenue, which makes a rightangle turn from a north-south to an east-west thoroughfare.

The designation as heavy industrial conformed to the character of the district for 60 years or longer. Much of the land is reclaimed by fill. Heavy industry, including petroleum storage facilities, chemical, fertilizer and other manufacturing industries are massed along the Arthur Kill. Some undeveloped land with pockets of marshland and tidal creeks is south of the Rahway River. Two large petroleum tank "farms" are north of Roosevelt Avenue. Storage tanks for naphtha and sulfur are south and east of Roosevelt Avenue. A major chemical industry located here after 1958 but most of the changes in the intervening period involved plant additions or improvements.

The adjoining residential and business zones likewise retained their essential character between 1958 and 1963, built up and heavily populated. New home construction was minimal except in housing developments one-half mile or more from the Heavy Industrial Zone and a senior citizens housing project with nine buildings and 50 units completed in 1962 within a short distance of the plaintiffs' and intervenor's properties.

The zoning ordinance of 1958 was ruled invalid for procedural defects in a letter opinion by Judge Molineux in Cinege

v. Borough of Carteret. No judgment was filed because of a stipulation of dismissal. Plaintiff Tidewater Oil Company broached its plan to construct a petroleum storage tank terminal in Carteret to borough officials, including the then mayor and members of the council, in the summer of 1962. A use permit was requisite under the 1958 ordinance, contingent upon proof to the board of adjustment that a proposed industry was not dangerous or objectionable to the public. Tidewater proceeded in conformity with the 1958 ordinance. The preliminary negotiations raised no serious objections. Tidewater agreed to build an off-street parking area and a Little League baseball field, to plant trees and shrubs along Roosevelt Avenue and to participate pro rata with other industries in the event the borough condemned land of the Central Railroad of New Jersey for a public road bisecting various industrial properties parallel to the Arthur Kill and Roosevelt Avenue.

A new mayor and two new members of the six-member council assumed office on January 1, 1963. The plaintiffs applied for a building permit and a use permit for the construction of a petroleum storage tank terminal on February 1, 1963. An unofficial meeting was held by the members of the governing body 11 days later. About 150 citizens attended. Opposition to Tidewater was vehement and overwhelming. Councilman Hutnick moved with a second that Tidewater be kept out of the Borough of Carteret. The board of adjustment held a public hearing on the use permit application on February 26 and March 5, 1963, but adjourned for 60 days without concluding the hearing and without a decision, upon advice from Mayor Banick and Councilman Boncelet that a new zoning ordinance affecting the plaintiffs' property was under consideration.

On February 28, 1963 the planning board discussed for an hour or more a proposal to divide the Heavy Industrial Zone into A and B zones, with restrictions against petroleum industries in the latter zone. An amendment to the zoning ordinance of December 1958 accomplishing this result was

drafted with the participation of the planning board and recommended for adoption to the governing body, at a special meeting of the planning board on March 5, 1963. The governing body enacted this amendment on March 20, 1963. The area in the Heavy Industrial Zone south of Roosevelt Avenue, including the plaintiffs' and intervenor's properties, was established as the B zone.

This zoning amendment remained in force less than two months. The council members and the incoming mayor viewed with concern the continuing doubtful validity of the 1958 ordinance. The planning board considered a complete new ordinance at a regular meeting on March 28, 1963 and voted to recommend its enactment at a special meeting on April 1, 1963. The borough council adopted it on May 8, 1963. The Heavy Industrial A Zone, north of Roosevelt Avenue, and the Heavy Industrial B Zone, south of Roosevelt Avenue, are identical with the zones which were created by the amendment of March 20, 1963. As pertinent here, the zoning ...


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