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Kohl v. Mayor and Council of Borough of Fair Lawn

Decided: October 23, 1967.


For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.


By this action in lieu of prerogative writs, plaintiff challenges the grant of a zoning variance which permits the defendant, Fair Lawn Dairies, Inc. (Dairies), to expand its nonconforming industrial use in a residential zone in the defendant Borough of Fair Lawn. Plaintiff is a resident and taxpayer of the Borough and owns a home within 200 feet of Dairies' nonconforming milk processing and bottling plant.

The variance was granted to Dairies by the Mayor and Council of the Borough upon the recommendation of the Board of Adjustment. N.J.S.A. 40:55-39(d). The Superior Court, Law Division, upheld the grant of the variance and the Appellate Division affirmed. We granted plaintiff's petition for certification. 48 N.J. 144 (1966).

Defendant's dairy has existed on the present tract of about 4 acres in Fair Lawn for the past 40 years. Apparently the dairy originally was a small family operation, but over the years has increased -- partially through a merger in 1952

with a larger dairy -- to a business now grossing over 17 million dollars annually and employing 145 persons. Since the Borough first enacted its zoning ordinance in 1933 Dairies has been located in a residential zone and has conducted its milk processing, bottling, and distributing operation as a nonconforming use. Although no homes were in the area originally, residences since have been built on the land surrounding the dairy and it is agreed that at the present time the area is a "high class residential neighborhood."

For a proper understanding of this case, it is useful to review the recent history of Dairies' operation. In 1954 Dairies, without applying for a variance, began construction of some new buildings on the premises. A suit was instituted by a group of neighboring homeowners to enjoin this construction and compel removal of the buildings already partially erected. The suit was settled by a stipulation in which the plaintiffs agreed not to object to a pending application by Dairies for a variance which would permit the construction and operation of the aforesaid buildings. In return, Dairies agreed that it would not make any further applications for variances from the zoning laws of the Borough. The agreement, which imposed certain other conditions on Dairies' use of its premises, was to be for a term of 30 years. The variance thereafter was granted and the construction of the buildings was permitted.

In 1962 Dairies again expanded its facilities and one of the parties to the 1954 agreement instituted a second action against Dairies alleging violation of that agreement and requesting specific performance thereof. The Borough of Fair Lawn, named as a defendant in that suit, cross-claimed against Dairies alleging that it had violated a condition of the 1954 variance by building a cinder block wall to enclose part of a loading platform and by conducting bottle washing operations thereon. After a hearing in the Chancery Division Judge Pashman enjoined Dairies from using the loading platform for bottle washing and ordered that the bottle

washing equipment and the wall built to enclose it be removed. The court held, however, that Dairies' promise not to seek a variance for 30 years after the 1954 agreement was not specifically enforceable. The operation of the injunction was stayed for one year to permit Dairies an opportunity to apply for a variance to legalize the use of the loading platform for bottle washing or to make other arrangements. Thereafter Dairies applied for the variance which is the subject of the present review. The application, however, went far beyond a request to continue the use enjoined by the Chancery Division (which use would require no new construction). According to the plans submitted with Dairies' application for a variance the following construction is proposed:

1. A two-story addition, 76' by 115', to the existing processing plant erected pursuant to the 1954 variance. This addition would replace two small frame buildings adjacent to the processing plant and would be joined with a new second floor to be constructed on the processing plant, creating a completely new structure having dimensions of 115' by 195'.

2. A 50' by 115' addition to an existing storage building which now has dimensions of 30' by 115'.

3. A covered boomerang-shaped loading dock beginning at the rear of the existing processing plant and running along Dairies' property line for a distance of 478 feet. The loading dock would be 25 feet in width, about 14 feet in height, and would contain a conveyor belt extending its full length. The plans show that the loading dock would accommodate 32 vehicles at one time.

4. The premises are to be virtually enclosed by an eight foot cinder block wall and by the rear wall of the loading dock which would be about 14 feet high.

5. The property is to be completely paved with blacktop.

It is estimated that the cost of this new construction will be $500,000. The new construction consists of at least

35,180 square feet of floor space,*fn1 replacing 6,300 square feet in the frame structures which are to be razed to make way for the addition to the processing plant.

At the hearing before the Board of Adjustment, Dairies' architect presented the plans of the proposed construction and testified that in his opinion the proposal would bring about a safer condition with respect to fire hazards because the nonfireproofed frame buildings would be replaced by fireproof structures. He also said that the appearance of Dairies' plant would be improved and that noise would be decreased since the new wall would block off the view of the activities now present at the dairy and would deaden the sound about which the neighbors had complained. Dairies' only other witness was a real estate expert who offered his opinion that the new construction would have no deleterious effect on the neighborhood but, to the contrary, would "enhance . . . the property values of those properties surrounding it." Dairies concluded its presentation by introducing into evidence Judge Pashman's opinion in the 1962 Chancery litigation.

The sole witness offered by the objectors was a real estate expert who said that the new construction would depreciate the value of properties in the area, particularly those residences the rear yards of which abutted the proposed site of the loading dock.

The Board of Adjustment recommended the variance in accordance with the plans submitted upon the condition that appropriate shrubbery be planted at the front of the processing plant and along the proposed wall. Subsequently the ...

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