Grundlehner v. DanglerGrundlehner v. Dangler
The Appellate Division, in an opinion reported at 51 N.J. Super. 53 (1958), set aside a zoning variance which had been recommended by Belmar‘s board of adjustment, approved by its board of commissioners, and sustained by the Law Division. We granted certification on the application of the appellant J. Henry Dangler. See 28 N.J. 57 (1958).
The appellant is the owner of the Dangler funeral home which is conducted in a 14-room dwelling house located at the corner of South Lake Drive and Eighth Avenue in Belmar. Under the terms of a 1953 revision of the local zoning ordinance, the surrounding area was placed in a residential zone confined to one-family dwelling houses but the pre-existing funeral home was properly continued as a nonconforming use. The first floor of the 2 1/2-story Dangler house is used in connection with the operation of the funeral home and the upper floors contain rooms which are vacant in addition to rooms used by Dangler as living quarters. The house has an attractive appearance with a frontage of 40 feet facing west on South Lake Drive, a depth of 40 feet on the Eighth Avenue side and a projection of ten feet at the rear of the house near the side distant from Eighth Avenue. A porch ten feet in width extends across the front of the house and also along the Eighth Avenue side. Steps lead from the rear of the porch along the Eighth Avenue side to a sidewalk and driveway in the rear of the house.
On February 14, 1957 Dangler applied for a building permit to construct an extension which would be ten feet in width, 26 feet in length and 11 feet in height. The extension would join the building at a point between the rear porch steps and the ten-foot projection and would have the effect of straightening the back portion of the building. It would contain an office, smoking room, elevator and stairway to the rear of the funeral home. The application also sought permission to make a ten by 24 foot addition to Dangler‘s garage. On February 25, 1957 the building inspector
Mr. Dangler‘s position before the board of adjustment was that the proposed addition would not entail any increased business in the funeral home and would lessen the incidents which residents in the area might find objectionable. As he put it, he has no “bargain sales” in his business, his proposed addition contemplates no “extension of the use” although it contemplates a physical extension of the building, and he is “trying to improve the place for the people who come there and trying to get rid of some of the unsightly things outside.” Mr. Pierce, a member of the board of adjustment, expressed the view that the application involved a small extension which would “hide the operation of his business“; Mr. Heyniger, a member of the board, stressed the fact that the operation of the business would not be enlarged; and Mr. Bennett, a member of the board, noted that the addition would make “the normal operation of the business less objectionable and less obvious” since Dangler is “now forced to bring remains out along the side and with the new addition will take the caskets from the door to the hearse.” Mr. Bennett also noted that whether the application was granted or denied the funeral home would in all likelihood continue to operate. The board, without adopting any formal resolution embodying basic and ultimate factual findings, recommended that Dangler‘s application be granted in its entirety. On April 9, 1957 the board of commissioners, after having considered the proceedings before the board of adjustment and having viewed the premises,
On April 24, 1957 the plaintiffs filed their complaint in the Law Division seeking to set aside the resolution of the board of commissioners insofar as it approved the variance for the proposed addition to the funeral home itself. Answer was duly filed and the matter was tried before Superior Court Judge Ewart, who found that the variance contemplated “a small, rather than a substantial enlargement of the Dangler Funeral Home building” and that the relief granted “will not be detrimental to the public good and will not substantially impair the intent and purpose of the zone plan and ordinance.” His dismissal of the plaintiffs’ action was appealed to the Appellate Division which, on June 27, 1958 reversed on its finding that the size of the proposed extension “raises doubt” as to whether it is “insubstantial,” that it did not see how Dangler could prove that the alteration would be “insubstantial,” and that the action of the board of commissioners was therefore “unreasonable.” See 51 N.J. Super. at page 61.
The appellant urges that the proposed structural addition would in no wise increase the number of funerals but would allow removal of caskets directly from the building to adjacent vehicles in the rear parking lot, thereby avoiding the undesirable incidents of having the caskets carried to the street for placement in vehicles waiting there; that the new smoking room would eliminate the milling and crowding by patrons along the street and facilitate matters for them within the funeral home; that the elevator would alleviate the burdensome task of lifting and aid in the
When the Zoning Act of 1928 was passed (L. 1928, c. 274) it contained a provision to the effect that any nonconforming use or structure existing at the time of the passage of the local zoning ordinance may be continued as of right.
The restriction against the enlargement of a non-conforming use as of right applies to the physical structure as well as its use. See Rockleigh Borough, Bergen County v. Astral Industries, 29 N.J. Super. 154, 161 (App. Div. 1953). And where there is doubt as to whether the enlargement is substantial rather than insubstantial it is to be resolved against the enlargement. See Heagen v. Borough of Allendale, supra, 42 N.J. Super. at page 482; Martin v. Cestone, 33 N.J. Super. 267, 271 (App. Div. 1954). In the instant matter, it appears clear that the proposed addition, which would add 260 square feet to the 1600 or 1700 square feet now on the first floor of the building, may not fairly be viewed as a negligible or insubstantial enlargement which the appellant could make as of right; the provision in
The granting of variances from general zoning restrictions has been the subject of considerable discussion. See Ranney v. Istituto Pontificio Delle Maestre Filippini, supra; Ward v. Scott, supra; Gaylord, “Zoning: Variances, Exceptions and Conditional Use Permits in California,” 5 U.C.L.A.L. Rev. 179 (1958); Green, “The Power of the Zoning Board of Adjustment to Grant Variances from the Zoning Ordinance,” 29 N.C.L. Rev. 244 (1951); Note, “Zoning
When the Zoning Act of 1928 was originally passed it contained a paragraph which authorized the board of adjustment to grant a variance upon a specified showing, and a separate paragraph which authorized it to recommend action by the municipal governing body. The former paragraph led to
Variances allowing new nonconforming uses have generally been viewed with hostility by our courts, which have consistently stressed that variances tend to impair sound zoning and should be granted only sparingly and with great caution. See Beirn v. Morris, 14 N.J. 529, 536 (1954); Lumund v. Bd. of Adjustment of Borough of Rutherford, 4 N.J. 577, 585 (1950). But while stressing their thesis our courts have, with equal consistency, acknowledged that under our triune system the determination as to whether there should be an exceptional variance power rests entirely with the Legislature and not at all with the court; that where a variance is granted by municipal officials pursuant to statutory authority it is entitled to the customary judicial presumption of validity; and that the court may not intervene to set aside such variance except upon a showing that the action of the municipal officials was arbitrary, capricious or in manifest abuse of their discretionary authority. See Ward v. Scott, supra, 16 N.J. at page 23; Rexon v. Bd. of Adjustment of Borough of Haddonfield, 10 N.J. 1, 7 (1952); Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405, 423 (1952); Rain or Shine Box Lunch Co. v. Newark Bd. of Adjust., 53 N.J. Super. 252, 262 (App. Div. 1958).
In determining whether the grant of a variance is to be upheld or set aside the court must consider each case on its own particular facts. See Grimley v. Ridgewood Village, supra, 45 N.J. Super. at page 581; Hann v. Borough of Sea Girt, 134 N.J.L. 74, 76 (Sup. Ct. 1946); Bianchi v. Morey, 128 N.J.L. 219, 221 (Sup. Ct. 1942). The use being permitted must be viewed in the light of the surroundings as they actually are and that will include all “uses which by whatever authority exist in a neighborhood.” See Bianchi v. Morey, supra, 128 N.J.L. at page 221; Grimley v. Ridgewood Village, supra, 45 N.J. Super. at page 582. In Grimley the court sustained a variance which enabled the respondent‘s operation of his law office in a dwelling house structure in a residential zone; the court, in an opinion by Judge (now Justice) Francis, found that in view of the actual surroundings and the other attendant circumstances there was no warrant for judicial interference with the municipal finding that there were “special reasons” within
In Ward v. Scott, supra, the board of adjustment recommended that a variance be granted under
“Earlier judicial views have been displaced by recent cases in this court which hold that municipal governing bodies may exercise broad powers in their zoning regulation of land and structures. See Fischer v. Township of Bedminster, 11 N.J. 194, 201 (1952); Lionshead Lakes, Inc., v. Township of Wayne, 10 N.J. 165 (1952), appeal dismissed, 344 U.S. 919, 73 S.Ct. 386, 97 L.Ed. 708 (1953); Duffcon Concrete Products v. Borough of Cresskill, 1 N.J. 509 (1949). Although these cases have been the subject of varying comments, we are convinced that they are in furtherance of constitutional and statutory objectives and the public welfare generally. Compare Haar, Zoning for Minimum Standards: The Wayne Township Case, 66 Harv. L. Rev. 1051 (1953), with Nolan and Horack, How Small a House? — Zoning for Minimum Space Requirements, 67 Harv. L. Rev. 967 (1954). See 4 Rutgers L. Rev. 71 (1950); 6 Rutgers L. Rev. 93 (1951); 7 Rutgers L. Rev. 85 (1952); 8 Rutgers L. Rev. 73 (1953). But we are equally convinced that the sanctioning of far-reaching zoning restrictions must fairly be accompanied by sympathetic recognition that there will arise, from time to time, exceptional situations which will justly call for individual variances within the prescribed legislative conditions and standards. See
N.J.S.A. 40:55-39 ; Ward v. Scott, 11 N.J. 117, 122 (1952). Local officials who are thoroughly familiar with their community‘s characteristics and interests and are the proper representatives of its people, are undoubtedly the best equipped to pass initially on such applications for variance. And their determinations should not be approached with a general feeling of suspicion, for as JusticeHolmes has properly admonished: `Universal distrust creates universal incompetence.’ Graham v. United States, 231 U.S. 474, 480, 34 S.Ct. 148, 151, 58 L.Ed. 319, 324 (1913). Where * * * the application for variance has been given careful and conscientious consideration by the zoning board and the town council and has been acted upon by both of them in strict conformity with the procedural and substantive terms of the statute, the ultimate interests of effective zoning will be advanced by permitting the action of the municipal officials to stand, in the absence of an affirmative showing that it was manifestly in abuse of their discretionary authority. Cf. Cobble Close Farm v. Bd. of Adjustment of Middletown Tp., 10 N.J. 442, 453 (1952); Schmidt v. Board of Adjustment of City of Newark, supra.” 16 N.J. at pages 22-23.
Since a variance may, upon a proper showing of special reasons within
In urging that the variance granted by the municipal officials should be sustained, the appellant Dangler apparently rests upon the assumption that the municipal officials actually found that it would not result in any increase of business or detract from the present appearance of his premises as a dwelling house, would avoid the undesirable incidents of having the caskets carried to the street, would eliminate milling and crowding by patrons along the street while facilitating matters for them within the funeral home, and would alleviate the operator‘s tasks of lifting and carrying the caskets. Such basic factual findings would suggest a minimization rather than an intensification of the discordant use in the residential neighborhood and would seemingly furnish sound grounds for ultimate findings that there were “special reasons” within the contemplation of
The resolution by the board of commissioners simply set forth that it had considered the proceedings before the board of adjustment and had inspected the premises and found that the granting of the addition to the funeral home would “correct a peculiar and exceptional practical difficulty and hardship to the owner,” would be without “substantial detriment” to the public good and would not “substantially impair” the zoning plan. It did not set forth any of the facts disclosed by the board‘s inspection. See Giordano v. City Commission of City of Newark, 2 N.J. 585, 589 (1949); cf. Tomko v. Vissers, supra, 21 N.J. at page 240; Ranney v. Istituto Pontificio Delle Maestre Filippini, supra, 20 N.J. at page 200; Dolan v. DeCapua, 16 N.J. 599, 610 (1954); Rain or Shine Box Lunch Co. v. Newark Board of Adjust., supra, 53 N.J. Super. at page 263; Izenberg v. Bd. of Adjustment of City of Paterson, 35 N.J. Super. 583, 592 (App. Div. 1955). It failed to make any basic findings as to whether the variance would result in increase of business or in avoidance of undesirable street incidents or in elimination of milling and crowding by patrons along the street or as to other pertinent factors. And it failed to specify the nature of the difficulty and hardship which was the single affirmative ground for relief expressed in the resolution. See Skaf v. Zoning Bd. of Adjustment of City of Asbury Park, supra, 35 N.J. Super. at page 222. The grant of any variance under
The judgment of the Appellate Division is modified and the cause is remanded for further proceedings before the board of adjustment of Belmar.
BURLING, J. (concurring).
I agree with the majority opinion that the state of the record is such that a remand to the board of adjustment for further basic and then ultimate factual findings in accordance with the standards set forth in
My disagreement is with the enunciation of the legal principles governing requests for variances seeking to enlarge nonconforming uses existing at the time of the enactment of the zoning ordinance. The majority, after reaffirming the principles of the two Ward v. Scott cases, 11 N.J. 117 (1952), 16 N.J. 16 (1954), then observe:
“Since a variance may, upon a proper showing of special reasons within
N.J.S.A. 40:55-39(d) , be granted to create a new non-conforming use in a residential zone it may clearly be granted to enlarge a pre-existing nonconforming use; it is entirely evident that a limited extension of a pre-existing professional office, gasoline station, funeral home, shopping center or other business activity ina residential zone, will ordinarily be less likely to involve substantial impairment of the zoning plan than will the creation of a wholly new use of such nature.”
But to make the prime focus of attention the “limited extension” of the pre-existent nonconforming use in order to determine whether a variance is permissible is in my view not the proper approach. Such a thesis fails to take into account the fundamental distinction between the extension or enlargement of a pre-existing nonconforming use and the creation of a new nonconforming use. A pre-existing nonconforming use exists as a matter of legislative right,
While it is true that a request for a variance is the proper procedure to achieve a substantial extension of a nonconforming use, Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64 (1952), application for such variance should be viewed with disfavor, and should only be granted where the property owner can clearly convince the appropriate municipal officials that a variance to create the nonconforming use in the first instance would have been granted.
The principles applicable to the situation at hand were enunciated by this court in Ranney v. Istituto Pontificio Delle Maestre Filippini, 20 N.J. 189, at page 196 as follows:
“While the courts have given full accord to this statutory mandate, United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 152 (1952), Frank J. Durkin Lumber Co. v. Fitzsimmons, supra [106 N.J.L. 183 (E. & A. 1929)]; Kramer v. Town of Montclair, 33 N.J. Super. 16 (App. Div. 1952); the spirit of the law is to restrict non-conforming uses. Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64, 77 (1952); Speakman v. Mayor and Council of Borough of North Plainfield, 8 N.J. 250, 257 (1951); Lumund v. Board of Adjustment, 4 N.J. 577, 585 (1950). Their position in the zoning scheme is not encouraged because of the tendency to subvert rather than support sound planning. Such uses possess a contagious character which works to infect the neighborhood of their location, Beirn v. Morris, 14 N.J. 529, 536 (1954); Note, 9 U. of Chicago L. Rev. 477, 479, 480 (1942), and their presence is adverse to the zoning objective of reasonable conformity, Speakman v. Mayor and Council of Borough of North Plainfield, supra, 8 N.J. at page 257. One eminent authority has gone so far as to suggest that the entire problem of the non-conforming use might be solved by establishing a duty to abstain from unfair non-conformity. See Freund, `Some Inadequately Discussed Problems of the Law of Zoning and City Planning,’ 24 Ill. L. Rev. 135, 147 (1929). Without discussing the merits of this proposition it is sufficient to remember that the benefits which accrue to the public through the zoning method are accompanied by burdens to all. Schmidt v. Board of Adjustment, 9 N.J. 405, 415 (1952).”
To the same effect is Monmouth Lumber Co. v. Ocean Township, supra.
These cases are in harmony with the firmly established policy in this State that pre-existing nonconforming uses must be contained, consonant with the spirit of a unified zoning plan. Burmore Co. v. Smith, 124 N.J.L. 541 (E. & A. 1940); Gross v. Allan, 37 N.J. Super. 262 (App. Div. 1955); Hay v. Board of Adjustment of Borough of Fort Lee, 37 N.J. Super. 461 (App. Div. 1955); Martin v. Cestone, 33 N.J. Super. 267 (App. Div. 1954); Rockleigh Borough, Bergen County v. Astral Industries, Inc., 29 N.J. Super. 154 (App. Div. 1953); Home Fuel Oil Co. of Ridgewood v. Board of Adjustment of Borough of Glen Rock, 5 N.J. Super. 63 (App. Div. 1949); National Lumber Products Co. v. Ponzio, 133 N.J.L. 95 (Sup. Ct. 1945); and see Editorial Note, 9 Rutgers L. Rev. 697, 706 (1955); Note, 102 U. of Pa. L. Rev. 91, 98 (1953).
A de minimis change would not be detrimental to the philosophy of containment. See Martin v. Cestone, supra (33 N.J. Super. at pages 270-271). But before a variance to substantially extend or enlarge a pre-existing nonconforming use may be granted under
To hold otherwise would render nugatory the policy to contain pre-existing nonconforming uses and the hope that eventually they will be relocated in more suitable environs. A substantial extension or enlargement of that use may perpetuate its continued existence, rather than “wither” it and incidentally operates unfairly against those who are not permitted to locate in the zone in the first instance.
Accordingly I vote to modify and remand.
BURLING, J., concurring in result.
For modification and remandment — Chief Justice WEINTRAUB, and Justices BURLING, JACOBS, FRANCIS and PROCTOR — 5.
For affirmance — Justice HEHER — 1.