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Wildlife Preserves Inc. v. Poole

Decided: June 5, 1964.

WILDLIFE PRESERVES, INC., A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
PAUL D. POOLE, JR., BUILDING INSPECTOR OF THE TOWNSHIP OF EAST HANOVER, ET AL., DEFENDANTS-RESPONDENTS



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

Lewis

Plaintiff Wildlife Preserves, Inc. instituted an action in lieu of prerogative writs in the Law Division of the Superior Court (1) to compel defendants building inspector, mayor and township committee of the Township of East Hanover to enforce the zoning laws of the municipality, and (2) to enjoin defendant Michael Deskovick from using his land as a "dump" in violation of a local zoning ordinance. The trial culminated in judgment for defendants, and plaintiff appeals.

It is here contended that the trial court erred in finding that plaintiff failed to sustain special damages sufficient to give it standing to bring the pending action, and that defendant Deskovick was not in violation of the existing zoning ordinance.

The first ground assigned for reversal requires only brief comment. The general rule is that a property owner

may obtain an equitable restraint against violation of a zoning ordinance if "special damage over and above the public injury" has been sustained. Mayor, &c., of Alpine Borough v. Brewster , 7 N.J. 42, 52 (1951); Garrou v. Teaneck Tryon Co. , 11 N.J. 294, 300 (1953). Here the complaint was dismissed but only after plenary hearing on the merits. While the trial court regarded as "scant" the proofs proffered as to special damages, it found as a matter of fact that Deskovick had not violated the zoning ordinance as alleged in the pleadings. Hence, the trial court recognized plaintiff's right to sue but found that the proofs were inadequate to sustain the claims asserted.

Resolution of the remaining issue impels an analysis of the factual record. In 1955 Deskovick, who is engaged in the construction business, acquired ownership of approximately nine acres of swampland situate in a district of the township which is zoned residential. The permitted uses in that zone include one-family dwellings, farms, nurseries and greenhouses, public parks, playgrounds, and "customary accessory buildings and uses, provided such are incidental to that of the principal building and use." The minimum lot area for residential buildings is 80,000 square feet, with a frontage of not less than 250 feet.

The subject lands consist of eight lots (referred to in the owner's deed and noted on the township tax map) which have a total frontage of approximately 900 to 1,000 feet along an abandoned roadway known as Clinger Road. The road deadends at the Whippany River, which forms the northwesterly boundary of the property.

Deskovick was the only witness for the defense. He described the swampland as marshy, with humus and peat moss at varying depths of two to ten feet, below which is a "crust of clay and then you run into sand and gravel." A substantial portion is under water, particularly when the river overflows after a heavy rain. The inundation has been as much as 42 inches "above the top of the humus." In 1956 he started to landfill the lowlands with "dirt, stumps, trees, rock, concrete,

brick, plaster, anything related to the building trade." Residents in the community were allowed, without charge, to deposit inorganic materials on the property -- but only on Saturdays, and they were prohibited from depositing undesirable waste such as garbage. On that day of the week a man was stationed on the premises to prevent improper dumping.

At the request of the State Board of Health, the owner defendant erected a locked access gate at the end of Clinger Road, approximately 200 feet from the river; keys were furnished to the police, fire department and board of health. Deskovick further testified that a coverage fill of one or two feet of earth was added to the basic deposits and the property was then leveled with a bulldozer to a surface grade of approximately five feet above the bank of the river. At the time of trial about an acre of land had been filled in and graded. Deskovick stated there would be "no problem," with the use of proper concrete pilings, to build "any kind of structure" on the completed terrain and, under redirect examination, he made reference to ranch type homes in the township which had been constructed on similar bog land.

When interrogated by plaintiff's counsel, Deskovick admitted that his property was originally purchased as a place to "get rid of my ...


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