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State v. Gallop Building

Decided: November 8, 1968.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GALLOP BUILDING, DEFENDANT-APPELLANT



Goldmann, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.

Carton

Defendant appeals from a conviction after a trial de novo in the County Court on a charge of violating section 7(3)(b) of the Borough of Shrewsbury zoning ordinance. It was fined $20 and costs.

In September 1965 defendant acquired property in the B-1 business zone, consisting of two adjoining plots, known as lots 4 and 5, each 50 feet in width by 145 feet in depth, and fronting on White Road. An office building on Lot 4 houses five enterprises which employ a total of 14 persons who presently use the remainder of lot 4 and 5 as a parking lot, there being insufficient parking space for lot 4 alone to accommodate all the vehicles.

Section 7(3)(a) of the zoning ordinance provides that in any business zone, every portion of land less than 50 feet from a residential zone boundary line shall be known as a business buffer area. Such area may not be used for the erection of any building or structure or extension thereof,

except in the case of an existing building wholly or partly located in that area and exclusively devoted to residential uses.

Section 7(3)(b), the specific section under which defendant is charged, provides as follows:

"No part of any lot containing a business buffer area shall be used for or devoted to any business purpose unless there shall have been established a screen belt of at least 20 feet wide and parallel to the zone boundary and consisting of evergreen trees planted and maintained at a minimum height of five feet and of such density across the entire width of the lot so as to obscure from the residential zone the business activity conducted on the lot. Such planting shall be in accordance with a plan which shall first be approved by the Planning Board of the Borough of Shrewsbury in accordance with the standards herein set forth."

Section 7(3)(c) states that when any land in a business zone abuts a residential zone boundary line and is used for business or forms a part of a lot used for business, the screening belt shall be placed at the boundary line within the business buffer area.

Defendant produced a landscape contractor who testified that it would take 180 trees, spaced four feet apart, to cover the 20' X 145' area in order to screen the activities on its property from the adjoining residential area. At $28 a tree, this would cost $5,040. In addition, planting the trees and maintaining them for one year would cost $3,024. Maintenance in succeeding years would be $750 a year. The county judge found this testimony purporting to establish the cost as prohibitive, "incredible to the point of absurdity," and therefore gave it no weight.

The trial judge said that the ordinance was presumed to be valid and could not be set aside except upon a clear showing that it was arbitrary and unreasonable, citing Vickers v. Gloucester Tp. Committee, 37 N.J. 232 (1962), certiorari denied, 371 U.S. 233, 83 S. Ct. 326, 9 L. Ed. 2 d 495 (1963). There being no such showing, he found defendant guilty of violating the ordinance.

Defendant assails the validity of the ordinance on the general grounds that these requirements provide for different treatment of property within the same district, contrary to N.J.S.A. 40:55-31; that they serve no legitimate zoning purpose, and that there exists no ...


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