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Odabash v. Mayor and Council of Borough of Dumont

Decided: May 9, 1974.

ARTHUR ODABASH AND WILLIAM M. GREER AND GERTRUDE L. GREER, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF DUMONT, DEFENDANT-APPELLANT



For modification and remandment -- Chief Justice Hughes, and Justices Jacobs, Hall, Mountain, Sullivan, Pashman and Clifford. For affirmance -- None. The opinion of the Court was delivered by Hall, J.

Hall

Stripped of non-vital procedural complications, this zoning case boils down to the rather narrow question of the validity, as applied to plaintiffs' property,*fn1 of amendments of a municipal zoning ordinance prohibiting thereafter throughout the town the erection of previously allowed garden apartments and other multiple family dwellings for more than two families. The property in question had been zoned prior to the amendatory legislation to permit garden apartments and now constitutes practically an island in the midst of multi-family and commercial uses. Resolution of the question depends primarily on the particular physical facts.

The locale is Dumont, Bergen County, a borough approaching 20,000 in population with an area of only 1.82 square miles. It is almost completely built up as a residential

community, resulting in a high population density; most of the residents live in one-family houses. Industrial uses are minuscule; business uses are limited to retail establishments and offices serving the needs of the local citizenry situated in a few well defined commercial districts.

Early zoning enactments confined residential uses to one and two family houses (Residence "A" zones). In 1952 the ordinance was amended to allow garden apartments (some such structures appear to have been erected before the amendment) in what were designated as Residence "B" zones, which also permitted one and two family dwellings and professional offices if the professional person resided on the premises (likewise allowed in Residence A districts). The residence B zones, commonly referred to as the garden apartment districts, were located principally in 100 foot deep strips on main intermunicipal streets running along or near the southerly and westerly boundaries of the borough. Actually these zones extended inward to the rear property line of the particular lot by virtue of another provision of the ordinance which specifies that where the boundary line of a district runs through any lot, the regulation and restriction of the less restricted district shall automatically apply to the entire area of the lot. (Compare a different type of zone extension provision referred to in AMG Associates v. Township of Springfield, 65 N.J. 101, p. 114, n. 5 decided this day.) The result was a considerable extension in many instances, including plaintiffs' property, of the garden apartment zone into interior one family dwelling areas, as to which the owners of such dwellings were on notice. Between 1952 and 1969 a substantial number of garden apartment complexes were built so that now they represent 18% of the total number of housing units in the borough.

In November 1969 the first of the two amendments involved was adopted, prohibiting, as we have said, future construction of all multiple family housing for more than two families in any zone. It is clear, as both lower courts here found, that the measure was intended as a temporary moratorium

pending the adoption of a master plan then in preparation. (We understand that no such plan has since been adopted.) The reason for this amendment was continued pressure for additional apartment housing in the light of the already high population density which had resulted in traffic congestion on inadequate main thoroughfares and in detrimental effect on the efficiency of old sanitary sewers and of the surface water drainage system. In other words, the municipality said it had had enough apartments, within the holding of Fanale v. Hasbrouck Heights, 26 N.J. 320 (1958). Plaintiffs do not seriously challenge the validity in general of this municipal decision, so we are not called upon to further consider Fanale.

Knickerbocker Road, a heavily traveled street, forms the easterly boundary of Dumont with Cresskill and Demarest. In Dumont, the road runs for seven blocks from Madison to Massachusetts Avenues, comprising a distance of about 4,500 feet. It was, prior to 1969, zoned Residence B, plus two small business zones, for its entire length except for the long block between Hamilton and Grant Avenues and two widely separated single lots zoned Residence A.

Plaintiffs' property lies in the northerly third of this Knickerbocker Road frontage in the middle of the block between Delong and Larch Avenues. It is about 160 feet wide by approximately 340 feet deep, irregular, slightly over an acre in area, and occupied by an old, very large house and outbuildings resided in by the Greers and another family. (The Greers find it necessary to dispose of the property for reasons of age and health after owning it for over 50 years.) As for the 17 year old pre-amendment zoning of this section of Knickerbocker Road, going north there is a single lot business zone next to plaintiffs on the Delong Avenue corner occupied by a delicatessen followed by garden apartment zoning and use from Delong Avenue to Massachusetts Avenue (the northerly Dumont boundary) except for a single lot Residence A zone at the latter corner occupied by a one family dwelling and professional office.

Going south, adjoining plaintiffs on the Larch Avenue corner, where the land was zoned for apartments like plaintiffs' lot, are a pair of two family duplexes, fronting on that avenue and constructed with the appearance of garden apartments.*fn2 Across Larch Avenue south to Lexington Avenue, the land was zoned for garden apartment use and is occupied as such, plus one professional office.*fn3 Some of these garden apartment tracts extend deeper into the one family residential area behind than does plaintiffs' lot. The total effect of these present uses along the northerly third of Knickerbocker Road ...


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