Decided: March 29, 1973.
AMG ASSOCIATES, A NEW JERSEY PARTNERSHIP, PLAINTIFF-RESPONDENT,
TOWNSHIP OF SPRINGFIELD, UNION COUNTY, NEW JERSEY, A MUNICIPAL CORPORATION, THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF SPRINGFIELD AND PAUL GREENSTEIN, AS BUILDING INSPECTOR OF THE TOWNSHIP OF SPRINGFIELD, DEFENDANTS-APPELLANTS, AND THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SPRINGFIELD, DEFENDANT
Kolovsky, Matthews and McGowan. The opinion of the court was delivered by Kolovsky, P.J.A.D.
[123 NJSuper Page 297] Defendant township appeals from a judgment declaring that
[123 NJSuper Page 298]
* * * the provision of S-60 of the Springfield Township Zoning Ordinance of September, 1968, is invalid, arbitrary and unreasonable in its application to the rear of Lots 1 and 2 of Plaintiffs' subject property; that Plaintiffs are entitled to use the said rear portions of Lots 1 and 2 of the subject premises for office "O" zone purposes, including use for additional on site parking in conjunction with the existing office building and parking facilities; * * *
The judgment further provided that if plaintiff uses the rear portions of the lots for parking, it shall comply with ordinance provisions requiring a 10-foot buffer area, a 6-foot high close woven wood fence, and appropriate evergreen shrub screening.
The controversy here presented stems from the fact that, under the township's zoning ordinance, properties on the north side of Morris Avenue extending three blocks west from Short Hils Avenue are zoned for office purposes to a depth of only 150 feet. While lots 3 and 4 of plaintiff's property extend less than 150 feet north of Morris Avenue, the depth of lot 1 is 184 feet and that of lot 2, 195 feet.
Lot 1, fronting 105 feet on the north side of Morris Avenue and 185 feet on the west side of Short Hills Avenue, had been owned by Anna O. Grate. Lots 2, 3 and 4, which had been owned by a Mr. and Mrs. Lubenau, is a plot fronting approximately 150 feet on Morris Avenue and 118 feet on Lewis Drive. Lot 2, which adjoins lot 1 on the west, is 60 feet wide and 195 feet deep. The depth of lots 3 and 4 from Morris Avenue is 118 feet.
Plaintiff AMG Associates had contracted to purchase lot 1 from Mrs. Grate and lots 2 to 4 from Mr. and Mrs. Lubenau. As required by their contracts, Mrs. Grate and Mr. and Mrs. Lubenau applied to the board of adjustment for use variances, pursuant to N.J.S.A. 40:55-39 (d), so that the portions of lots 1 and 2 extending beyond the 150-foot zone line could be used for office purposes. The building plans prepared by AMG Associates and submitted with the applications provided for the construction of an office building on the front 150 feet of lot 1 and the use of the rear of lot 1 and all of lots 2, 3 and 4 for parking.
[123 NJSuper Page 299]
The board of adjustment recommended that the variances be granted, with several limiting conditions. The township committee rejected the recommendation and denied the variances sought.
Plaintiff AMG Associates and Anna O. Grate then filed a complaint in two counts. (The sale by Mrs. Grate was thereafter consummated and she was eliminated as a party plaintiff by the pretrial order.) The first count sought an adjudication not only that the township committee acted arbitrarily in denying the variance but also that the conditions imposed by the board in its recommendation for a variance were arbitrary. The second count sought an adjudication that the township's 1967 zoning ordinance was "void, unconstitutional and ineffective to prevent plaintiffs, or any devisees thereof from using the entire subject premises as permitted in said 'O' district of the Township of Springfield," and a judgment directing the building inspector to issue a permit to erect the proposed office building and "to use the entire subject premises for 'O' zone use."
The action was not pretried until 15 months after the complaint was filed. By that time plaintiff had changed its building plans and, after the institution of this action, had erected a three-story office building on lots 3 and 4 at the corner of Morris Avenue and Lewis Drive.
The trial court, Grate v. Township of Springfield , 117 N.J. Super. 130, ruled that the changed circumstances resulting from the construction of the building on a portion of the tract other than that indicated on the plans submitted to the board and the township committee made it inappropriate to disturb the denial of the variance by the township committee.
The trial court noted that
We do not agree with that conclusion. In our opinion the changes made in the building site plan after the applications were considered by the municipal bodies should have led the trial court to withhold consideration of the issue of the validity of the ordinance until plaintiff had first presented the changed circumstances to the municipal bodies by way of a new application for a variance.
The physical situation presented after the building was erected on lots 3 and 4 differed substantially from that which would have existed if the building had been erected, as originally planned, on lot 1. The municipal bodies should have been given the opportunity to determine whether that change in the physical situation warranted the grant of a variance permitting plaintiff to use at least part, if not all, of the rear of lots 1 and 2 for office parking purposes.
However, our disagreement with the procedure adopted by the trial court would not in itself warrant a reversal. Cf. Deal Gardens, Inc. v. Bd. of Trustees, Loch Arbour , 48 N.J. 492, 497-498 (1967). We therefore proceed to the merits of the court's determination that the ordinance provision limiting office use of lots 1 and 2 to a depth of 150 feet was invalid.
The trial court recognized that:
Zoning district lines need not coincide with property lines, and the municipality has the power and authority to set these district lines. The fixing of zoning lines is a critical function of the zoning process and is a matter of legislative discretion. * * *
Cited by the court in support of its conclusion that the ordinance provision was invalid because it rendered the rear portion of the lots unusable are several out-of-state cases which are readily distinguishable on the facts.
Moreover, whatever may be the rule in other jurisdictions, it has been held in this State that in circumstances such as those presented here, the unusability of the rear portion of the lot does not render invalid a zone line which is not as deep as the lot line of the property. Visco v. Plainfield , 136 N.J.L. 659 (Sup. Ct. 1948).
In Visco it appeared that lands on the northerly side of West Front Street, between Emma Street and Mariners Place, were zoned to a depth of 100 feet for business, and beyond that depth for "C" residence purposes. Plaintiff Visco's lot was 135 feet deep. He sought permission to construct a one-story cement block addition, 14 feet by 16 feet, at the rear of his premises. When his application for a variance was denied, he, on certiorari , attacked both the ordinance limitation and the denial of a variance, contending that
In rejecting the attack, Justice Heher, writing for the former Supreme Court said:
The delineation of such use districts by the local legislative tribunal involves the exercise of a reasonable discretion, controlled by the statutory considerations; and there is no ground for judicial interference unless there has been arbitrary action. There was none such here. The location of the district boundary in a straight parallel line 100 feet back from West Front Street is not assailed as unreasonable or capricious, nor could it well be. The statute R.S. 40:55-31, 40:55-32 empowers the local governing body to "divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes" thereof, and directs that the regulation of the structures in such districts shall be "with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout" the municipality; and there is no deviation from this criterion in the zoning for business of the land abutting on West Front Street, to the depth indicated, and the restriction to residence uses of all the land to the rear fronting on Emma Street and Mariners Place.
We turn now to the second reason on which the trial court relied in declaring the ordinance limitation invalid. Here -- unlike in Visco -- plaintiff did contend, and the trial court found, that the location of the boundary line in a straight parallel line 150 feet back from Morris Avenue was arbitrary and unreasonable because of "the fact that various other areas along Morris Avenue were zoned for office use to a depth of 200 feet along Morris Avenue, up to the easterly side of Short Hills Avenue." (117 N.J. Super. at 141)
However, we conclude that the record furnishes no warrant for judicial interference with the discretion of the governing body which adopted the ordinance provision limiting to 150 feet the depth of the office zone on the north side of Morris Avenue in the three-block area extending west from Short Hills Avenue. The fact that in other areas of Morris Avenue the office zone depth is 200 feet is not of controlling significance. The setting of different zone depths for office or business districts in different sections of a street such as Morris Avenue may properly be influenced by a desire not to invade, in the respective sections, existing residential
[123 NJSuper Page 304]
areas to the rear of the office or business zone. Plaintiff's proofs did not overcome the presumption of reasonableness which attaches to the ordinance classification.
The judgment is reversed and the cause remanded for entry of a judgment in defendants' favor.