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Borough of Demarest v. Heck

Decided: June 3, 1964.

BOROUGH OF DEMAREST, PLAINTIFF-APPELLANT,
v.
FRED HECK AND MILDRED HECK, HIS WIFE, DEFENDANTS-RESPONDENTS



Gaulkin, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

Plaintiff Borough of Demarest appeals from a judgment of the Superior Court, Chancery Division, denying injunctive relief from alleged violations of its zoning ordinance and the maintenance of an alleged nuisance. Defendants Fred Heck and Mildred Heck, his wife, own the subject property known as 147 County Road, Demarest. It consists of approximately 3.65 acres of land on which are located farm buildings that are at least 50 years old. Eighteen horses and three ponies are maintained on the premises.

The premises had been part of a farm situate in a district denominated residential. The 1922 zoning ordinance provided that in such districts:

"* * * no trades or industries, except the construction of one and two-family dwellings or accessory buildings and except the conducting of agricultural, horticultural or dairying business , shall hereafter be carried on, conducted or located, and no building * * * shall be hereafter located or constructed therein, to wit * * * Barns, stables or garages other than accessory buildings to one or two-family dwellings. * * *" (Emphasis supplied)

In 1941 a new zoning ordinance was passed upgrading the district and limiting the area use to:

"Single, detached houses used as residence by not more than one family and accessory buildings necessary thereto. There shall not be more than one private garage as an accessory building."

Between the years 1916 and 1935 the property in litigation was a portion of a ten-acre parcel of land which had been owned and operated by Henry Ebbighausen as a general farm. The animals thereon included pigs, one cow and a plow horse. The farm was conveyed to a bank in 1935 and, thereafter, for three or four years, it remained idle and unoccupied. In February 1940 it was purchased by Albert Rossini and wife; they never lived on the premises but used the barns for stabling their horses. There was conflicting testimony between Rossini and his first caretaker, Anton Schuermann, as to the number of horses maintained on the property at the time the 1941 ordinance was adopted. It is clear, however, that after the successor caretaker, Dominick Furfero, took possession in 1942, additional horses were brought onto the premises for "boarding" purposes.

In 1945 Rossini subdivided the ten-acre tract and sold off portions thereof for the construction of dwelling houses, retaining ownership of the segment (approximately 3 1/2 acres) on which the farm buildings were located. In 1951 that residual area was sold by Rossini to his caretaker Furfero. There is evidence that during the period of the latter's occupancy the number of horse stalls in the farm buildings was increased to 26; at times all of the stalls were filled. After Furfero's death in 1959, his widow gradually discontinued the horse boarding business and, by October 1961 when the property was sold to the defendants, the number of horses had dwindled to one.

Defendant Fred Heck testified that he lives in Closter, a municipality adjoining Demarest. He is the building inspector and zoning officer of his home community. Although principally engaged in the building trade, he also owns a

horse stable in Closter and has been in the business of "training and owning" horses since he was 18 years of age. Upon acquisition of the Demarest property, Heck developed thereon a horse stabling business. He arranged for the dwelling to be tenanted by Mrs. Astrid Mans, whose eldest daughter was entrusted with the supervision of the stables, including the exercising and training of horses and the teaching of children to ride. The number of horses defendants maintained on the premises fluctuated. At the time of trial (June 1963), in addition to their two jumping horses, defendants boarded 16 horses and three ponies.

The commercial aspects of defendants' project are best described in the words of Mr. Heck who testified:

Direct examination:

"Q. Would you describe to the Court exactly the nature of your operation here with the horses, what you ...


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