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Cahill v. Heckel

Decided: February 26, 1965.

DANIEL CAHILL AND OLLIE CAHILL, HIS WIFE, AND JOSEPH STYPA AND BETTY LOU STYPA, HIS WIFE, AND ELIAS HOFFMAN AND JOLA HOFFMAN, HIS WIFE, PLAINTIFFS,
v.
LEWIS E. HECKEL, DEFENDANT. LEWIS E. HECKEL AND GERTRUDE M. HECKEL, HIS WIFE, PLAINTIFFS, V. CHESTER A. JOHNSON AS BUILDING INSPECTOR OF THE BOROUGH OF MOUNTAINSIDE, UNION COUNTY, ET AL AND DANIEL CAHILL AND OLLIE CAHILL, HIS WIFE, AND JOSEPH STYPA AND BETTY LOU STYPA, HIS WIFE, AND ELIAS HOFFMAN AND JOLA HOFFMAN, HIS WIFE, DEFENDANTS



Herbert, J.s.c.

Herbert

These cases are consolidated. In Docket C 143-63 plaintiffs are neighbors of defendant Heckel. They allege he is committing violations of the zoning ordinances of the Borough of Mountainside at 300 Summit Road, where he lives and carries on some phases of his trucking and contracting business. Their complaint also charges that Heckel's use of his property is unreasonable and constitutes a nuisance "by reason of the dirt, dust, noises and fumes generated * * * and resulting unsightliness."

In Docket C 572-63 Mr. and Mrs. Heckel have sued for a declaratory judgment that the use being made of the Heckel property is lawful, particularly because of an alleged nonconforming use; and they have named as defendants the plaintiffs in Docket C 143-63 as well as the Borough of Mountainside and its building inspector.

On November 19, 1962 the building inspector made a complaint in the Municipal Court of Mountainside against Lewis E. Heckel, charging a violation of the zoning ordinance in that "said Defendant did enlarge and extend the scope and area of a non-conforming use as defined in said Ordinance." On that complaint Heckel was found guilty by the magistrate, and the judgment was subsequently affirmed by the Union County Court in a decision announced April 22, 1963. Then, on September 4, 1963, a second complaint was made in the municipal court against Heckel by the building inspector. Proceedings on that complaint had not yet been completed when this consolidated cause was tried, but I am informed that the municipal magistrate found Heckel guilty of violating the ordinance; that there was another appeal on which the Union County Court sent the case back to the magistrate for further proceedings; and that Heckel was again found guilty. I am also informed that an appeal from the magistrate's most recent decision was taken to the Union County Court and has not yet been disposed of.

The complaint in Cahill v. Heckel (C 143-63) was filed September 12, 1963. The complaint in Heckel v. Johnson (C 572-63) was filed October 28, 1963.

Cahill and his coplaintiffs have not proved that a common law nuisance exists and therefore cannot have relief on that theory. There was testimony about occasional and disturbing noise from the motors of trucks and other heavy equipment belonging to Heckel. The proofs fall short, however, of showing noise severe enough and frequent enough to prejudice the health of Heckel's neighbors or interfere with thir normal habits of living. Nothing here approaches the severity of the noises which led the court to conclude a nuisance had been proved in Protokowicz v. Lesofski, 69 N.J. Super. 436 (Ch. Div. 1961). Heckel's neighbors have also alleged dirt, dust, fumes and unsightliness as elements of a common law nuisance. No effort was made to prove any of these allegations, and any evidence which may be considered as at all pertinent to them is far from sufficient to make out a case of nuisance. The area would be more attractive to look at if Heckel's heavy equipment were not in sight, but in New Jersey it has been said that unsightliness is no basis for a finding of nuisance. Demarest v. Hardham, 34 N.J. Eq. 469, 474 (Ch. 1881). That appears to be the general rule. 39 Am. Jur., Nuisances, ยง 28, p. 310.

The plaintiffs in Docket C 143-63, having failed to prove a case of common law nuisance, must fall back upon their allegations that Heckel has violated the zoning ordinance. In Garrou v. Teaneck Tryon, 11 N.J. 294 (1953), it was held that a private citizen living adjacent to a plot of land used as a parking lot had standing to seek injunctive relief against a violation of the local zoning ordinance consisting of such use of the lot. Concerning the position of such citizen the court said:

"The plaintiff is not acting simply as a citizen or taxpayer of the community in his quest to prevent further violation of the zoning ordinance. He is a property owner whose home adjoins the premises where the violation is occurring and he alleges special damages in that he and his family are being discommoded and his property depreciated. His interest is distinct from and greater than that of the community as a whole and we perceive no reason for denying him fair opportunity to vindicate and protect that interest; we consider that

such denial would not only operate unjustly as to him but would also retard the public interest." (at p. 300)

Other cases appear to have recognized that the right of a private citizen to sue in cases like the present follows from the fact of his being located near the premises on which the alleged violation is taking place. Yanow v. Seven Oaks Park, Inc., 15 N.J. Super. 73, 80 et seq. (Ch. Div. 1951); Sautto v. Edenboro Apartments, 84 N.J. Super. 461 (App. Div. 1964).

In Sautto plaintiffs were private citizens residing on either side of the large apartment house which allegedly had been built in such a location as to violate the zoning ...


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