Northvale v. BlundoNorthvale v. Blundo
Defendant was convicted in the Northvale Municipal Court for violation of the local zoning ordinance in that he parked a commercial vehicle at night in the driveway of his home, located in the residence A zone of the borough, instead of housing it in a garage. He appealed, and following a trial de novo the County Court affirmed the municipal court decision and imposed a penalty of $15 fine and $5 costs. After unsuccessfully moving for a new trial defendant appealed to this court.
The facts are not in dispute. We first deal with the Northvale zoning ordinance and its amendments and supplements.
The borough adopted a supplement to the zoning ordinance in May 1956, some eight months later. It provided therein that storage space for not more than four motor vehicles was permitted in a private garage (defined in the original ordinance) in any residential zone, “including space therein for not more than one (1) commercial vehicle” of no more than 1 1/2-ton capacity.
The borough governing body turned its attention to this new section of the zoning ordinance when, on June 12, 1963, it adopted an amendatory ordinance which provided:
“Any garage in the `A’ residential zone shall contain storage space for not more than four motor vehicles including space therein for not more than one commercial vehicle of a capacity of not more than one ton. No commercial vehicle shall be parked out of doors overnight in the `A’ residential zone and such night parking in said zone by a commercial vehicle of one ton or less shall be in a garage. No commercial vehicle of any type shall be parked on the street in the `A’ residential zone except for deliveries or services to or for residents on the said street.”
There is a one-car garage located on defendant‘s residential property. Prior to the adoption of the last-mentioned ordinance defendant was the owner of a Ford Falcon panel truck, euphemistically referred to in his brief as a “station wagon.”
On July 24, 1963, soon after the passage of the amendatory ordinance just quoted, defendant got in touch with the local chief of police and told him he wanted to test the legality of the ordinance. He asked that the chief sign a complaint and issue a summons against him for parking his commercial vehicle in the driveway of his home at night. The chief of police served the summons at 9 P.M., testifying that the vehicle was then in the driveway while defendant‘s passenger car was in the garage.
Defendant contends that the parking of his commercial vehicle overnight and on weekends in the driveway of his residential premises amounts to an accessory use, where the vehicle was used for the sole purpose of his going to work in the morning and returning home at night, and where no business was conducted at the premises. The parking having been uninterrupted and continuous prior to the adoption of the 1963 amendatory zoning ordinance prohibiting such a use, it is defendant‘s claim that he enjoys a prior nonconforming use which cannot be affected by the ordinance.
As noted, the original zoning ordinance of 1955 did not specifically prohibit the parking in question. Nor do we find an express prohibition in the 1956 supplement. We therefore come to the question of whether defendant‘s parking of the commercial vehicle in his driveway was an accessory use. Although neither ordinance spoke in terms of a use accessory to the residence use, an accessory use must ordinarily be implied — as a matter of law — as a right which accompanies the principal use. See 1 Rathkopf, Law of Zoning and Planning (3d ed. 1960), pp. 23-4, 5. As we said in Zahn v. Newark Board of Adjustment, 45 N.J. Super. 516, 521-2 (1957), the allowance of a primary use “generally authorizes all uses normally accessory, auxiliary or incidental thereto.”
In our view, defendant‘s parking of his commercial vehicle in the driveway of his home located in the highest residential district of the borough — a quality neighborhood, to judge from the exhibit in the record submitted — did not attain the level of an accessory use under the 1955 ordinance as supplemented in 1956. It was not such a use as one could reasonably say was customarily incidental to the residential use, nor one so necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it.
Defendant calls attention to Mountain Lakes v. Mola, 60 N.J. Super. 421 (1960), a County Court decision, as presenting almost identical facts. Defendant Mola parked his halfton pickup truck in the driveway of his premises located in the B residential zone of Mountain Lakes — a use not expressly prohibited in that zone. As in this case, he used the truck to go to and from work. The township argued that such parking was, by implication, not permitted. The county judge held that the parking was an accessory use, emphasizing that defendant made no commercial use whatever of his residence. We find this latter fact not determinative, consider the Mountain Lakes result erroneous, and overrule the conclusion reached. Although not exact precedents which might be followed, reference may be made to People v. Scrafano, 307 Mich. 655, 12 N.W.2d 325 (Sup. Ct. 1943) (storing commercial vehicles in a private garage in a residence zone, held a violation of the zoning ordinance); Dumais v. Somersworth, 101 N.H. 111, 134 A.2d 700 (Sup. Ct. 1957) (private garage held an accessory use in a residential district, but parking commercial vehicles therein violated the zoning ordinance although it was silent with respect to garages or accessory uses in any district); Facci v. Schenectady, 13 Misc.2d 247, 176 N.Y.S.2d 827 (Sup. Ct. 1957) (overnight parking of a commercial vehicle in the driveway held not an accessory use to a dwelling in a residential area).
We have heretofore pointed out that the 1956 supplement did not expressly forbid the parking of a commercial vehicle in a driveway in a residential A zone. It is to be noted, however, that in allowing four motor vehicles to be stored in a private garage in such a zone, the borough permitted one of the spaces to be used for a commercial vehicle not exceeding 1 1/2-ton capacity. Here was an indication, however indirectly expressed, that the municipality wanted such vehicles kept under cover. This was made explicit in the 1963 amendatory ordinance, which prohibited out-of-doors overnight parking of commercial vehicles in the A residential zone, but allowed a commercial vehicle not exceeding one-ton capacity to be kept in a garage.
We conclude, therefore, that defendant did not have an accessory use prior to the effective date of the June 12, 1963 ordinance. Accordingly, he could not have enjoyed a nonconforming use such as would have escaped the prohibition of that ordinance.
Defendant argues, finally, that since the 1963 amendatory ordinance prohibited out-of-door overnight parking of commercial vehicles in the A residential zone only, and since the provisions relating to the B residential zone were identical except for frontage requirements, the amendment violated the Constitutions of New Jersey and the United States. We find the exercise of the municipal zoning power reasonable.
Affirmed.