On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Michels, Deighan and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
Defendant Herman Liedtka is the owner of two adjoining lots in the Township of Chesterfield known as lots 7 and 7A. Defendant Herman Liedtka, Inc. is a corporation which was engaged in excavating, mining and removing soil from those lots and selling it. Plaintiff Michael Cronin is a resident of Chesterfield and plaintiff Crosswicks Creek Watershed Association is a non-profit corporation whose complaint alleges that it was "formed for the purpose of conserving, protecting and improving the natural resources inherent in the Crosswicks Creek Watershed" and that it has numerous dues paying members who reside in close proximity to Mr. Liedtka's property.
A land-use ordinance adopted by the Township in 1961 placed Mr. Liedtka's property within a rural-agricultural district. Mining, excavating and removing soil were not permitted uses. A new land-use ordinance was adopted in 1978. That ordinance expressly prohibits the excavation of soil, except as required to construct approved structures and facilities on the property from which the soil is taken. The ordinance continued to designate the district in which Mr. Liedtka's property is located as an agricultural-residential district in which farming, dwellings, associated accessory uses and some conditional uses are permitted.
Lots 7A and 7 were originally one parcel of 73 acres of farm land. Mr. Liedtka commenced excavating, mining and removing soil in 1954. At that time he was not the owner of the property. He conducted his operations pursuant to an agreement
with the owner, who simultaneously conducted agricultural operations on the land.
In 1966 Mr. Liedtka entered into an agreement to purchase the property. Although he wanted to purchase the entire 73 acres, he lacked sufficient funds. The property was therefore subdivided, and he purchased 28 acres and received an option to purchase the remaining 45 acres.
The 28 acre parcel purchased by Mr. Liedtka was designated as lot 7A. It consisted of the portion of the property upon which soil removal operations had been started in 1954. The remaining 45 acre tract was designated as lot 7. Mr. Liedtka purchased lot 7 in 1969. Plaintiffs concede that defendants have a valid, nonconforming use to excavate, mine and remove soil from lot 7A. They contend, however, that that nonconforming use does not extend to lot 7. Defendants take the position that their soil removal operation is a legal nonconforming use on both lots 7 and 7A in accordance with the rule of Moore v. Bridgewater Tp., 69 N.J. Super. 1, 173 A.2d 430 (App.Div.1961), a case which establishes special criteria for establishing a nonconforming use when that use involves the utilization of a wasting asset.
In 1986 the defendant corporation applied to the Chesterfield Township Committee for the issuance of a soil removal permit pursuant to a township ordinance regulating soil removal. According to the ordinance, no one may undertake or continue the removal of soil within the township without first obtaining a permit. Detailed conditions are established for the issuance of such a permit. In deciding whether to issue a soil removal permit, the Township Committee is directed to consider "zoning considerations," among other requirements. The ordinance also directs that the Township Committee "shall condition any approved soil removals that it may grant upon the applicant obtaining approvals from all other governmental agencies having jurisdiction thereover. . . ."
Following application by Mr. Liedtka, public hearings were held and a soil removal permit was issued. Thereafter plaintiffs commenced a suit in the Law Division challenging the issuance of the permit. During the course of that suit, the parties ascertained that the Chesterfield Soil Removal Ordinance had never been validly adopted. Consequently, summary judgment was entered in favor of the plaintiffs on the ground that the Township Committee had acted in excess of authority in granting the permit pursuant to an invalid ordinance. The soil removal ordinance was thereupon re-adopted, and Mr. Liedtka again applied to the Township Committee for a permit. The Township Committee took judicial notice of the evidence which had been presented during the hearings held in connection with Mr. Liedtka's prior application, and it issued a new permit authorizing him to remove soil from lots 7 and 7A.
The soil removal permit issued by Chesterfield Township summarized at some length the facts and circumstances which, in the view of the Township Committee, justified and conditioned its issuance. The permit described the days of the week and hours of the day during which the soil removal operation would proceed, the number of trucks, loaders and bulldozers that would be involved, the efforts that would be taken and the provisions that would be made to restore the site and prevent erosion, and ...