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Cappture Realty Corp. v. Board of Adjustment of Borough of Elmwood Park

Decided: December 21, 1973.


Petrella, J.c.c., Temporarily Assigned.


Plaintiff corporation in this action in lieu of prerogative writ, challenges the denial of a special exception use under Ordinance No. 71-13, as amended by Ordinance No. 72-15 of defendant Borough of Elmwood Park. These ordinances and Ordinance No. 73-14 essentially declared a moratorium on construction on certain lands in the borough within what is referred to as the flood-prone or flood-plain area of Fleischer Brook, unless a special exception use permit was obtained from the governing body on recommendation of the board of adjustment. However, the planning board must issue an advisory report approving the variance and the applicant must satisfy criteria in the ordinance. Plaintiff also challenges the requirement for a permit in an "Industrial E" zone under section 88-17 of the borough*fn1 zoning ordinance. Additionally, the reasonableness of the moratorium and constitutionality of the ordinances are challenged.

The court finds, based on the record in this case, that Ordinance No. 71-13 was adopted in October 1971 for a one-year period. It contained, among other things, the following statement of purpose:

WHEREAS, it is of immediate and vital importance that all construction in the flood prone and flood plain areas be prohibited for a reasonable time to enable the Borough of East Paterson to study and put into operation flood control plans and to study and adopt necessary amendments to its Zoning Ordinances and Building Code to prevent and alleviate flood conditions in such area; * * *.

The original ordinance also expressed concern for eligibility under the National Flood Insurance Act of 1968. See 42 U.S.C.A. ยง 4022.

Ordinance No. 72-15 was enacted in October 1972, amended sections 2 and 3 of Ordinance No. 71-13, and extended the moratorium for a second year. In November

1973 the 1972 ordinance was substantially reenacted as Ordinance No. 73-14 and extended for another year. Section 3 of the amendatory ordinance expressly provided that all other provisions of the original ordinance remained in full force and effect. The parties stipulated that although enactment of the 1973 ordinance was subsequent to the filing of the complaint and trial of this cause, the decision would be binding on the 1973 ordinance.

Plaintiff owns approximately 3.2 acres of vacant land in Elmwood Park traversed by Fleischer Brook. The subject property is located within 250 to 300 feet of East 54th Street, an area subject to severe flooding.

An engineering firm was retained by the county in August 1970 to study Fleischer Brook, which runs through the municipalities of Saddle Brook, Fair Lawn, Elmwood Park and Garfield. The resulting report, "Flood Control Study, Fleischer Brook," dated December 1971, was submitted in April or May of 1972 to the board of chosen freeholders and the concerned municipalities. The report was relied on by both parties and the court has taken judicial notice of it. The report recommended certain construction work along the entire length of Fleischer Brook, including what is referred to as the Lanza Avenue diversion or bypass (at the border of Garfield and the borough) which would carry the water flow past Garfield directly to the Passaic River. The report strongly advised that down-stream work, particularly the diversion project, be completed first, and further land development should be delayed until after completion. The report deals with construction and engineering solutions rather than land use planning and zoning aspects.

The Flood Control Study succinctly states:

Fleischer Brook, although a minor tributary of the Passaic River, traverses a highly urbanized area of Bergen County. Location of the Brook is shown on Plate 1. The drainage basin, with a total area of 2.7 square miles (1730 acres), includes sections of East Paterson (962 acres), Garfield (428 acres), and Fair Lawn (273) and Saddle Brook (67 acres). Based upon the population densities in each

municipality in 1970, an estimated 28,000 people reside within the basin. Further urban development within the basin is limited since land use is approaching saturation. [at I-1]

Certain definitions in the report are pertinent to the problem involved in this case:

Surface Runoff

The flow of water which occurs when the rate of precipitation exceeds the rate of infiltration and after the filling of surface depressions, and which finds its way over the surface of the ground until it reaches the beginnings of a definite stream channel system or is intercepted by a storm sewer system.

Design Storm (Return Frequency)

A storm with such a pattern that it may be expected not to recur over a specific period of time. A design storm is said to have a return frequency of so many years, thus a design storm of 20 year return frequency is not expected to recur more than once every 20 years over a long period of time.

Design Flood

The quantity of surface runoff from the design storm to be contained within the confines of the stream channel.

As to a description of the borough, the report stated:

East Paterson

The area of East Paterson within the basin is approaching full development. The dense residential development in conjunction with the Garden State Parkway, Route 46 and Interstate Route 80 has left little open space for further development. Since the 1940's when the population more than tripled from 4,937 in 1940 to 15,386 in 1950, the Borough has shown very slow growth. Between 1960 (19,344) and 1970 (20,293) there has been only a 5 percent increase in population. Future development in this municipality within the drainage basin is therefore anticipated to have a minor effect on increasing the flow to the Brook. [at II-2]

As the Flood Control Study noted, approximately 962 acres in the borough are within the drainage basin of Fleischer Brook. Only about 5 to 10% of this area in the borough is presently undeveloped. Thus, future horizontal urban development is limited, although if fully developed additional surface runoff would reach the brook and at an accelerated

pace during rainfalls. The impact of future development was disputed, but the effect of such urbanization upon the ability of Fleischer Brook to convey stormwaters may be seen by comparison of runoff factors between open lands, roofed and paved areas. For open lands, 20 to 35% of the rainfall reaches the Brook as runoff whereas, for roof and paved areas, the runoff ranges from 70 to 95% of the rainfall. Flood Control Study, at I-1.

Although plaintiff apparently concedes that the moratorium was reasonable during the first year, it asserts that all subsequent extensions are unconstitutional, unreasonable and arbitrary, and resulted in a taking of property and prevention of its use without compensation by the borough. Plaintiff relies on Morris County Land, etc. v. Parsippany-Troy Hills Tp., 40 N.J. 539 (1963). Further, plaintiff asserts that no industrial structure could be built on its property to meet a requirement for the special exception use that "no additional surface run-off of water will be generated * * *," and hence should be held impossible to comply with based on Oakwood at Madison, Inc. v. Madison Tp., 117 N.J. Super. 11, 21 (Law Div. 1971). However, in the Oakwood case the court specifically found nothing in the record to support concern for flooding in connection with a zoning ordinance which required 30% of the town to remain undeveloped.

On April 25, 1973 plaintiff applied to the board of adjustment for a special exception use variance to erect a combination storage warehouse, tractor-trailer maintenance facility for its own trucks, and cardboard box manufacturing facility with related office space. Plaintiff's property is zoned for "E Industrial Use" and is bounded by tracts developed accordingly. In its application to the board of adjustment plaintiff volunteered to straighten, dredge and improve the entire section of Fleischer Brook contained within the boundaries of plaintiff's property at its own expense, in accordance with the recommendations in the Flood Control Study.

Defendant planning board recommended to defendant board of adjustment a denial of the ...

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