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Jenpet Realty Co. v. J.B. Ardlin Inc.

Decided: October 28, 1970.

JENPET REALTY CO., INC., A CORPORATION OF NEW JERSEY, AND PETER J. PETRIZZO, PLAINTIFFS-APPELLANTS,
v.
J.B. ARDLIN, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-RESPONDENT



Kilkenny, Halpern and Lane.

Per Curiam

[112 NJSuper Page 80] Plaintiffs appeal from a judgment of the Law Division in favor of defendant, upholding a variance

recommended by the Zoning Board of Adjustment and approved by the Mayor and Council of the City of Garfield.

The variance would allow defendant property owner to erect a garden-type apartment building with 38 apartments and two offices in a heavy industrial zone, designated as "I" zone under the zoning ordinance.

The heavy industrial zone in this area is about 2000 feet in length running north and south, and about 400 feet in width running in an east-west direction, bounded on the west by the railroad and on the east by Midland Avenue.

The land in issue consists of two lots, slightly less than one acre in area, somewhat irregular in shape and of uneven gradation, located at the intersection of Midland and Van Winkle Avenues, almost in the center of the heavy industrial zone.

On the easterly side of Midland Avenue, immediately across from the subject property, is the beginning of a medium density residential area, the only permitted use from that point southward. Van Winkle Avenue is zoned primarily for low and medium residential use, with only the area in which the subject property is located zoned for industrial use. On the western border of the property are the tracks of Erie Railroad Company, across which is an area zoned for light manufacturing.

Approximately 25% of the property in the industrial district is being used for residences. There is a public school within 200 feet of the property in issue.

Plaintiff, an adjoining property owner whose land is used for warehousing and as a trucking terminal, objected to defendant's application for the variance. However, the variance was recommended and thereafter granted. The Law Division sustained the variance, as noted above.

In recommending the variance, the zoning board of adjustment found, among other things, that (1) because of the property's unique location and the status of the surrounding neighborhood, the proposed use was "particularly

suitable" and "will not be detrimental to the public good," (2) "the proposed use will be in harmony with the intent and purpose of the Zoning Ordinance of the City of Garfield."

Plaintiffs maintain that a zoning ordinance may prohibit a residential use in an industrial district. This is true. Cf. Kozesnik v. Montgomery Tp. , 24 N.J. 154 (1957), wherein the court said (at 169) "* * * homes are no more appropriate in an industrial district than industry in a residential one. In both situations the baleful influences upon residences are the same. Moreover, industry may prefer to avoid the frictions which ensue when discordant uses are side by side." The municipal welfare may be "better served by avoiding motley activities within its districts." Ibid. ...


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