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Rolfe v. Borough of Emerson

Decided: April 27, 1976.

JUSTIN B. ROLFE AND JOAN S. ROLFE, PLAINTIFFS,
v.
THE BOROUGH OF EMERSON AND THE EMERSON BOARD OF ADJUSTMENT, DEFENDANTS



Pressler, J.c.c., Temporarily Assigned.

Pressler

[141 NJSuper Page 344] This is a land use planning case. Plaintiff Justin Rolfe, the proprietor of a school bus business, is presently, pursuant to contract with some 10 or 12 school districts in eastern Bergen County, providing the daily required transportation needs of the students of those communities. Since 1972, when he purchased a parcel of land in the Borough of Emerson, he has been unsuccessfully attempting to relocate the business in that municipality from its present inadequate site in the Borough of Dumont. He brought this action in lieu of prerogative writs seeking judicial relief from the repeated efforts of defendants Borough of Emerson and its board of adjustment to prevent him from making that use of his property. More specifically, plaintiff has challenged both the most recent refusal of the board of adjustment to recommend a use variance to the governing body and, on constitutional grounds, the most recent of a series of amendments to the borough's zoning ordinance prohibiting a school bus use of the premises in question. It is the conclusion of this court for the reasons herein stated that he is entitled to the relief he seeks.

The variance issue was tried on the record made before the board of adjustment. The constitutional challenge to the ordinance was tried on the testimony of planning, traffic and real estate experts produced by both plaintiff and the borough. Cf. Odabash v. Dumont Mayor and Council , 65 N.J. 115, 121, n. 4 (1974).

The questions raised by the variance application are two-fold. The first, essentially a question of law, is whether the use of property for a school bus garage facility serving a regional need is so inherently beneficial to the general welfare as to constitute a "special reason" within the intendment of N.J.S.A. 40:55-39(d), thus warranting the grant of a use variance, provided only that the "negative criteria" of the statute are met. The second, essentially a question of fact, is whether, if the use does not by its very nature rise to the status of "inherently beneficial," the general welfare would nevertheless be served by permitting it because it is a use peculiarly suited to the particular location for which the variance is sought.

The essential question raised by the constitutional challenge to the ordinance is whether a municipality, motivated by a desire to upgrade a specific area both economically and aesthetically, may rezone that area so as to render all or almost all of the existing uses therein nonconforming and to deprive the owner of the only vacant parcel in that area of a use undeniably compatible with the existing uses, particularly where there is substantial doubt as to the economic feasibility of utilizing that vacant parcel for any of the newly permitted uses and where those newly permitted uses are no less burdensome in terms of their potentially negative environmental impact than the now prohibited use.

Resolution of these issues requires some detailed delineation of the factual and procedural context in which they arise. As appears from the record made before the board of adjustment and from the court's physical inspection (undertaken at counsel's request) of the subject premises and their surroundings, the Borough of Emerson is one of the

municipalities of the so-called Northern Valley of Bergen County. Essentially a built-up suburban residential community consisting of single-family homes, it also has several areas devoted to a variety of commercial and light industrial uses. The town is bisected by Kinderkamack Road, a heavily travelled county thoroughfare, which is one of the major north-south traffic arteries in the eastern part of Bergen County. Immediately to its south lies the Borough of Oradell, not a dissimilar community. The premises in question are part of a triangle some six to seven acres in total area. The base of this triangle, some 330 feet in length, is formed by the Oradell-Emerson boundary line. Its easterly leg, some 1750 feet in length, is formed by a railroad right-of-way. Its westerly leg, some 1500 feet in length, is formed by Kinderkamack Road, which is its exclusive street access. The apex of the triangle lies at the intersection of Ackerman Avenue and Emerson Plaza West, the beginning of the central business district.

The uses in this triangle, all of which front on Kinderkamack Road, all of which have been there for some years, and most of which are on separate parcels of substantially less than an acre, are, from south to north, a Dairy Queen ice cream stand, a paper street which runs easterly to the railroad, an automobile transmission repair shop, a gas station, a Volkswagen body shop, a used Volkswagen dealership, a pizzeria, a small building housing a real estate and insurance office, a tavern, a small building housing a print shop and another real estate office, and an old single-family residence which has been converted into an art gallery. From the Volkswagen body shop north, these uses occupy the entire depth of the parcels on which they are located, i.e. , from the Kinderkamack Road frontage to the railroad. The Dairy Queen, the transmission shop and the gas station, however, each occupy parcels fronting on Kinderkamack Road but only 125 feet in depth. Behind these three uses the land elevation drops sharply by some 20 feet. That interior hollow, lying between the front parcels and the railroad

-- vacant, swampy, overgrown and not visible from Kinderkamack Road -- is plaintiff's property and the subject of this action. It is just under two acres in area and consists of two adjacent parcels separated only by the paper street.

To complete the description of the area immediately surrounding the subject premises, the uses on the west side of Kinderkamack Road opposite to the triangle in question consist, again from south to north, of a parcel of vacant land, a commercial kennel, a residence, a private nursing home, another residence, a dry cleaning establishment and a diner. Running from south to north, immediately east of the gully in which the subject premises and the railroad lie, are a corner of a private golf course, the borough's public works garage, a group of five small retail uses and a hotel. The germinal inspiration for Emerson's land-use policy of recent years in respect of the triangle, a policy which has resulted in this long-standing confrontation between plaintiff and the borough, is patently to be found in the development of the east side of Kinderkamack Road immediately to the south of the triangle and hence in the Borough of Oradell. There stand, side by side, on multi-acre, campus-type settings, two of the most attractive and high quality ratables in the county, the high rise regional headquarters of Xerox and Burns and Rowe.

The physical facts herein related have been relatively static since 1968, when the first relevant zoning ordinance amendment was adopted. Prior to that change the triangle, together with a 200-foot strip on the west side of Kinderkamack Road and the strip east of the railroad on which the five retail uses and the hotel are located, comprised one of the two "G" or general business zones of the municipality, in which were permitted a wide variety of commercial and warehousing uses, including public garages and depots. The 1968 amendment placed the triangle in a zone of its own as the borough's only "H" zone, in which was permitted the

single use of offices for the pursuit of the "recognized academic licensed professions."

Plaintiff acquired the subject premises in 1972, unaware of this apparently not widely advertised zoning change and relying on the former ordinance and the surrounding uses as indicating the permissibility of the school bus use. Learning of the 1968 zoning ordinance amendment after he had completed the purchase, he made his first variance application to the board of adjustment. His proposal at that time included the improvement of the paper street to provide access to Kinderkamack Road, indoor and outdoor facilities for the garaging, repairing and washing of some 20 to 30 buses (the washing equipment to recycle the water rather than disposing of it), a small facility to house an ancillary business of plaintiff's -- the repair of apartment house coin-operated washing machines -- and a public car wash. The application was rejected and the first stage of this litigation initiated, namely, a challenge to the rejection as well as to the 1968 ordinance amendment.

This court granted plaintiff the relief he sought, holding that the 1968 ordinance amendment was patently confiscatory, and this on the ineluctable conclusion that the potential use of plaintiff's nonvisible swampy hollow, located between the Dairy Queen and the railroad tracks, for an office building available only to a recognized academic licensed professional, was well beyond any realistic possibility.*fn1 It was the further holding of this court that plaintiff was entitled to the variance he sought for the school bus and washing machine repair use, but not for the public car wash, a plan which plaintiff is not now pursuing. Defendants appealed from the judgment in favor of plaintiff accordingly entered, but during the pendency of that appeal adopted a "comprehensive" zoning ordinance revision and

then moved the Appellate Division for a dismissal of the appeal on the ground of mootness. That court remanded to this court for determination of the effect of the new ordinance on the legal issues initially involved, and this court, in turn, remanded to the board of adjustment, first for supplementary record making, and then again to require the board, because of its failure in that regard, to make specific findings of fact and conclusions of law. During the pendency of the supplementary proceedings before the board of adjustment the borough again amended the zoning ordinance, this time for the sole purpose of redefining the permitted uses in the triangle.

The applicable zoning provisions as of the date of the conclusion of the board of adjustment proceedings, and as of the date of the trial hereof are essentially as follows: the triangle is now a self-contained "LBE" zone. There is one other such zone in the municipality, physically far removed from the triangle and not in issue in this action. The uses permitted in the triangle are now all uses permitted in the "LBW" zone and enumerated additional ones. The "LBW" permitted uses are limited to professional and governmental offices, medical and dental clinics, banks and other financial institutions, funeral homes, nursing homes, hospitals and schools. Clubs, lodges, fraternal organizations and "essential ...


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