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

Decided: July 1, 1964.

TIDEWATER OIL COMPANY, A CORPORATION, GEORGE D. EMERY COMPANY, A CORPORATION, AND ZOLTAN YUHASZ AND FLORENCE YUHASZ, HIS WIFE, PLAINTIFFS-RESPONDENTS, AND M & T CHEMICALS INC., INTERVENOR-RESPONDENT,
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-APPELLANTS



Conford, Freund and Sullivan. The opinion of the court was delivered by Freund, J.A.D.

Freund

Defendants appeal from a final judgment of the Superior Court, Law Division, declaring invalid those portions of the Borough of Carteret zoning ordinance, as adopted May 8, 1963, which divided the then existing heavy industrial zone into two parts, and placed use restrictions on one which were not made applicable to the other.

The factual background is fully set forth in the trial court's opinion, see Tidewater Oil Co. v. Mayor, etc., of Carteret , 80 N.J. Super. 283, 285-88

(Law Div. 1963), and we adopt the factual discussion therein except where inconsistent with or amplified by what is stated in this opinion. We further adopt the trial court's findings of fact that the May 8 amendment was enacted in good faith, and did not violate vested rights on the part of any of the plaintiffs. In this regard, it is clear that while it was Tidewater's application to build a petroleum storage facility which gave rise to the municipal concern with a spread of that kind of industry in the borough, see Roselle v. Mayor and Council of Borough of Moonachie , 49 N.J. Super. 35, 40 (App. Div. 1958), and therefore some of the testimony deals with "keeping Tidewater out," the ultimate objective of the governing body was keeping the petroleum storage industry out of the entire section of the heavy industrial area where it had not yet penetrated, rather than merely excluding Tidewater.

For purposes of convenience we reiterate the facts crucial to an appellate determination of the present cause. Carteret's original heavy industrial zone, as designated in its initial zoning ordinance of 1958, was, by amendment in March 1963, divided into two zones, the "Heavy Industrial A Zone" and the "Heavy Industrial B Zone." For technical reasons, the entire zoning ordinance, including this amendment, was reenacted on May 8, 1963. Although geographically and geophysically Zone B is as well (if not better) adapted for petroleum storage and refining as Zone A, the past industrial development of the Carteret waterfront (Arthur Kill on the eastern boundary and the Rahway River on the northern boundary) was such that the area now in Zone A is occupied to a great extent by large petroleum storage tanks, but that in Zone B is free of such "tank farms." Zone B does contain, however, several heavy industrial facilities which involve the manufacture and storage of petroleum derivatives. Under the May 8 ordinance the uses permitted in Zone A are exactly those which were permitted under the original single heavy industrial zone ordinance, but the following uses, permitted in Zone A, were prohibited in Zone B:

"1-1 The storage, manufacturing, refining or blending, of oil, oils, gas, gasoline, petroleum, crude oil, tars or any of the volatile, flammable, or explosive component parts of oil, gasoline, kerosene, petroleum, or crude oil or oils, or any of the inflammable, volatile or explosive liquids which are or can be derivative from gasoline, crude oil, tars or parts thereof, excepting however, storage of oil, fuel oil, gas or gasoline or petroleum for on-the-premises consumption for heat, fuel, power or other required consumption on the same premises in said zone where they are stored or maintained, and not for off-the-premises distribution or consumption.

1-2 No tanks or other containers or structures for storage or maintenance of such articles for off-the-premises distribution, use or consumption shall be erected, built, constructed, maintained, used or operated but only such as are essential for on-the-premises consumption in connection with a manufacturing or processing use or pursuit of another nature permitted in said zone. The lone exceptions will be those persons, companies, corporations, etc. who are and have been carrying on such functions or operations prior to the date of the adoption of the ordinance."

The trial court found that the exclusion of new petroleum industries in Zone B was "not in accordance with a classification of land uses reasonably related to and in furtherance of the statutory zoning purposes." 80 N.J. Super. , at p. 296. The appeal from that determination was argued before this court on June 15, 1964. That very night the borough council voted unanimously to adopt an amendment to section XII-1 of the zoning ordinance, which prescribed the permitted and prohibited uses for Zone B. It is well settled that, in respect of zoning uses, the law in effect at the time an appellate court decides a cause generally governs the disposition thereof, not the law prevailing when the case was decided in the trial court. Roselle v. Mayor and Council of Borough of Moonachie , 48 N.J. Super. 17, 21-22 (App. Div. 1957). All the parties concede this case is to be decided on the basis of the ordinance as amended June 15, 1964. Supplemental briefs have been submitted in relation to the issues encompassed thereby. The broad question now before us is whether or not the ordinance of May 8, 1963, as altered by the June 15, 1964 amendment, is a valid exercise of the municipal police power as applied to this municipality.

The 1964 amendment, insofar as it parallels the former section XII-1, reads:

"1. In the Heavy Industrial 'B' (H.I.B.) Zone, a lot may be used and a structure erected, altered or occupied for any use permitted in the Heavy Industrial 'A' (H.I.A.) Zone, except for the following prohibited uses:

1-1. The storage or refining of oil, gas, gasoline, petroleum, crude oil or tars is not permitted excepting, however, storage of oil, fuel oil, gas, gasoline or petroleum for on-the-premises consumption for heat, fuel, power or other required consumption on the same premises in said zone where they are stored or maintained, and not for off-the-premises consumption or distribution is permitted.

1-2. No tanks or other structures for the storage or refining of oil, oils, gas, gasoline, petroleum, crude oil or tars for off-the-premises distribution or consumption shall be erected, built, constructed, maintained, used or operated."

Subparagraph 1-3 states that no industrial or manufacturing uses shall be permitted in Zone B except after the zoning board issues a permit. Conditions for the grant of such a permit are then described. There is no challenge here as to the validity of this procedure.

It is thus seen that, basically, the prohibition in Zone B under the 1963 ordinance was not only of petroleum storage and refining but also of all manufacturing and processing involving petroleum derivatives. The 1964 ordinance eliminated the prohibition of the latter. This serves, accordingly, to dispose of the basis for that portion of the trial court's invalidation of the zoning plan which rests on the creation thereby of a large number of nonconforming uses in Zone B. As the ordinance now stands, the prohibition in Zone B is confined to the storage or refining of petroleum ...


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