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Forte v. Borough of Tenafly

Decided: July 8, 1969.

FRANK FORTE AND LOUISE B. FORTE, HIS WIFE, NICHOLAS D'IPPOLITO AND KATHERINE D'IPPOLITO, HIS WIFE, LEWIS D'IPPOLITO AND MADELINE D'IPPOLITO, HIS WIFE, JOSEPH LORENZO AND KATHERINE LORENZO, HIS WIFE, EDO BARZELATTO AND MARY-ANN BARZELATTO, HIS WIFE, AND HERWIN CENTERS, INC., PLAINTIFFS-RESPONDENTS,
v.
THE BOROUGH OF TENAFLY AND THE PLANNING BOARD OF TENAFLY, DEFENDANTS-APPELLANTS



Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Gaulkin, S.j.a.d.

Gaulkin

Defendants (hereinafter Tenafly) appeal from a judgment declaring Tenafly's amended zoning ordinance unconstitutional insofar as it forbade the construction of a supermarket upon plaintiffs' lands.

Prior to August 1967, the zoning ordinance permitted such a use in the zone in which plaintiffs' lands were situated. Early in 1967 plaintiffs applied to the building inspector for a permit to build the building, and to the planning board (board) for approval of its site plan and parking area. The board, aided by Kendree and Shepherd, planning consultants, was then engaged in a planning study of the borough with a view toward a comprehensive master plan. The consultants had recommended and the board agreed that the "central business core" of the borough should not only be preserved as the borough's retail shopping area, but strengthened and improved. This was to be done principally by improving the roads and the traffic pattern in said core to eliminate through-traffic and traffic congestion, and by forbidding retail businesses in the rest of the borough. This the board and its advisers felt would encourage retail businesses in the area to remain and improve and expand their properties, thus improving the appearance and enhancing the value of all properties in the business area, and providing the borough with an inviting "downtown" center. If retail businesses were allowed to spread along the roads throughout the borough, it was believed the central business area would deteriorate and decay. Therefore, instead of approving plaintiffs' application, the board adopted a resolution asking "that an interim zoning ordinance amendment be adopted in order to create a new district known as the C-2 District in order to discourage and restrict the spread of retail business beyond the downtown business core * * *." Shepherd, the borough's planning consultant, testified that 93% of all of the borough's retail business establishments were in the central business core.

The governing body agreed and, on November 28, 1967, passed ordinance No. 939. The ordinance recited the resolution of the planning board and created the C-2 District, stating

"A. Intent -- This district is intended for commercial and wholesale services and small local convenience neighborhood service establishments and other businesses not suited to the general retail business zone, and to provide uses which will not have an adverse effect upon the downtown business core."

The C-2 District included plaintiffs' property.

That portion of the C-2 zone here involved included all the lands previously contained in the business zone on the west side of County Road north of Mahan Street to the Cresskill border. Plaintiffs' lands were on said side of County Road, beginning at Prospect Terrace, the street north of and parallel to Mahan Street. At the time of the passage of the amendment there were a number of businesses in the new C-2 zone. Coming south from the Cresskill border on said side of County Road there was a Robert Hall clothing store. In the next block, between Summit Street and Hudson Avenue there was an Esso Service Station, Midtown County Rambler (selling new and used cars), County Auto Parts, an unoccupied but recently renovated business building and a funeral home. Continuing south, in the next block there was Lamb Studios (manufacturers of ceramics) and property occupied jointly by Stryker Drafting and Manufacturing Company and Poretta Plumbing and Heating Company. Then came plaintiffs' lots. Below Prospect Terrace there was a barber and beauty shop, a tavern with a catering service, a TV repair shop and a small grocery store with living quarters on the second floor. On the easterly side of County Road, opposite the premises in question, (zoned residential), there is a Ford automobile agency at the corner of Summit Street, a gasoline station at the corner of Hudson Avenue, between Hudson and Prospect a dance school and studio, and on the corner of Prospect

and County Road a cocktail lounge. The land abutting plaintiffs' property to the rear is in the M-1 industrial zone.

Plaintiffs immediately instituted this action to have the ordinance declared invalid. Defendants contend that the action should have been dismissed because plaintiffs failed to first apply for a variance. Under the circumstances here presented, it would have been futile to apply for a variance and therefore it was proper for plaintiffs to proceed as they did.

After a full trial, the trial court entered the judgment appealed from.

Defendants made some effort before the trial court to justify the elimination of retail stores in the C-2 zone on the ground that such uses would increase traffic on County Road, and so forth. The trial judge ruled, in effect, that since the true reasons were those expressed in the ordinance itself, it was not necessary to pass on the other alleged justifications. We agree, but add that the evidence does not establish any other justification. In other words, if the ...


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