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Davidow v. Board of Adjustment of Township of South Brunswick

Decided: March 15, 1973.

SOL DAVIDOW, PLAINTIFF-APPELLANT,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SOUTH BRUNSWICK, BUILDING INSPECTOR OF THE TOWNSHIP OF SOUTH BRUNSWICK, AND THE TOWNSHIP OF SOUTH BRUNSWICK, DEFENDANTS-RESPONDENTS



Carton, Mintz and Crahay.

Per Curiam

Plaintiff filed a complaint in lieu of prerogative writs challenging (1) the constitutionality of a portion of the South Brunswick Township (township) zoning ordinance, and (2) the denial by the board of adjustment (board) of a special exception permit to construct a motel, restaurant and cocktail complex.

The Law Division upheld the validity of the ordinance and affirmed the board's action in denying the special exception variance.

Plaintiff holds options to purchase a seven-acre tract at the southwest corner of Route 1 and Ridge Road in the township. It has a frontage of 510 feet along the southbound side of Route 1. Across Ridge Road from the involved property and on the same side of Route 1 is situated an existing motel. Route 1 is a four-lane highway with a center divider.

Section 401 of the ordinance recites various district regulations. The tract in question is in an LI-3 district (light industrial zone). Permitted uses are offices, light industry and scientific or research laboratories. The challenged portion of the ordinance allows in addition to the stated uses, subject to Board approval under N.J.S.A. 40:55-39(b), motels and restaurants provided that they be at intervals of not less than 5,000 feet from the same use along one side of a highway. Thus, by the terms of the ordinance plaintiff was precluded from seeking a (b) type permit under N.J.S.A. 40:55-39 and instead applied for a "special exception" variance under N.J.S.A. 40:55-39(d). After a hearing, the application was denied. The board found that plaintiff applicant had not demonstrated any special reasons for the motel complex use at the site. The decision was based in part on the grounds that there existed a motel across Ridge Road from the involved property on the same side of Route 1 and that the zoning ordinance permitted motels provided they were not within 5,000 feet of similar establishments.

The action in lieu of prerogative writs ensued, attacking the constitutionality of the 5,000-foot limitation and the denial of the variance. In Harvard Ent., Inc. v. Board of Adjustment of Madison Tp. , 56 N.J. 362 (1970), a similar attack was directed against proximity regulations involving gasoline stations. There the rulings upholding such regulations as enunciated in Schmidt v. Board of Adjustment, Newark , 9 N.J. 405 (1952), and Socony Mobil Oil Co. v. Ocean Tp. , 56 N.J. Super. 310 (Law Div. 1959), aff'd 59 N.J. Super. 4 (App. Div. 1960), were not disturbed. The court in Harvard noted that it had not hesitated in the

past to reconsider policies in the light of changed circumstances but felt that the record there did not warrant a departure from Schmidt and Socony.

In this matter plaintiff produced before the board a number of witnesses, some of whom addressed themselves to the 5,000-foot restriction.

The township's own planner, Elwood Jarmer, a licensed planner for the State of New Jersey, testified that he saw no problem in varying from the 5,000-foot separation requirements: "* * * the only comment I can make regarding that [5,000-foot requirement] is that I have not recommended that regulation as a proper planning control on motels. * * * I don't feel it's a proper planning control on motels." As planning consultant for the township planning board and the township he had recommended a change in the challenged requirement.

Nicholas T. Kehayas, a planning consultant, testified that the 5,000-foot requirement was arbitrary and he knew of no studies or reasons to fix distances between motels.

Henry Ney, a registered professional engineer whose principal practice was in traffic and transportation, testified both before the board in support of the variance and before the trial court in the attack on the constitutionality of the ordinance. From a traffic standpoint he was of the opinion that there was no basis for restricting distances between motel uses. He felt that such spacing requirements would have validity in comprehensive zoning in certain types of manufacturing uses which, where concentrated, might cause pollution problems. Insofar as motel uses were concerned, he stated there were no ...


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