Ardolino v. Board of Adjustment of Borough of Florham Park, Morris County
| Decision Date | 03 October 1956 |
| Docket Number | No. A--572,A--572 |
| Citation | 41 N.J.Super. 582,125 A.2d 543 |
| Parties | Joseph J. ARDOLINO and Carmella Ardolino, his wife, Plaintiffs-Appellants, v. BOARD OF ADJUSTMENT OF THE BOROUGH OF FLORHAM PARK, MORRIS COUNTY, New Jersey, and Albert P. Couvrette, Building Inspector and Zoning Officer of the Boroughof Florham Park, Morris County, New Jersey, Defendants-Respondents. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
John B. Applegate, Hoboken, for plaintiffs-appellants (Besson & Applegate, Hoboken, attorneys).
Elden Mills, Morristown, for defendants-respondents (Mills & Mills, Morristown, attorneys).
Before Judges GOLDMANN, FREUND and CONFORD.
The opinion of the court was delivered by
FREUND, J.A.D.
This is an appeal from a judgment of the Superior Court, Law Division, affirming the action of the defendant board of adjustment in refusing to grant a building variance as to Lot 366A on Lakeview Avenue, in Florham Park.
While the record before us is extremely meager, the substantial facts are not in dispute. In 1948 the plaintiffs acquired Lot 365A and built a house thereon. In 1954 the plaintiffs discovered that due to an error in surveying a portion of their house was actually on the adjoining southerly lot, 366B. Accordingly, they purchased that lot, giving them a total frontage on Lakeview Avenue of 126.83 feet.
On August 13, 1954 the Mayor and Council of the Borough of Florham Park adopted a zoning ordinance, which required building lots is such a residential district to have a minimum street frontage of 100 feet and a minimum area of 15,000 square feet.
Although the record makes no mention of the fact, there is some indication in the briefs, and it was stated on oral argument, that shortly after the adoption of the ordinance the plaintiffs obtained a variance and built a dwelling on the northerly 50 feet of Lot 365A. Thereafter, on September 28, 1954, the plaintiffs purchased a third lot, 366A, adjoining Lot 366B on the south and having a frontage of 50 feet. They then owned Lot 365A on which they had erected a dwelling; to the south, Lot 366B on which they had previously built a house and garage; and, again to the south, the newly acquired lot, 366A--the three lots having a combined frontage of 176.83 feet. Thereupon, the plaintiffs applied to the planning board for a realignment of their lot lines to give Lot 365A a frontage of 50 feet, Lot 366B a frontage of 64.83 feet and Lot 366A a frontage of 62 feet. The application was granted, with the proviso that 'no building permit be issued for lot 366A without further referral to the Planning Board.'
On November 1, 1954 the plaintiffs sold Lot 366B and the house erected thereon, retaining Lot 366A to the south with its 62-foot street frontage. It is not clear whether they also sold the most northerly lot, 365A, but in any event Lot 366A, an undersized lot according to the zoning provisions, was isolated from the adjoining Lot 366B.
In September 1955 the plaintiffs applied to the building inspector for a permit to build a residence on Lot 366A, which was refused because of the non-compliance of the lot with the 100-foot minimum frontage requirement of the zoning ordinance. They thereupon applied to the board of adjustment for a variance. On September 28, 1955 the local board of adjustment at a hearing considered the plaintiffs' application. The minutes of the meeting disclose that it was stated that the subdivision or realignment approval had been given to correct the difficult situation in which Mr. Ardolino found himself due to the faulty survey. Mr. Murer, a member of the board, stated that Ardolino 'had been advised when he inquired about the possibility of a variance for Lot 366A that he would have a problem if he bought the lot.' He also stated: 'Knowing the facts, Mr. Ardolino could not claim a hardship if he were not permitted to use the lot.' At the public hearing, interested property owners objected to the granting of the variance. At a meeting on October 26, 1955 the board by resolution denied the variance.
Ardolino instituted the present action to compel the issuance of a building permit and to review the denial of the variance by the board of adjustment. The Law Division affirmed the action of the board of adjustment and the plaintiffs appealed. The grounds here raised are: (1) that because Lot 366A had only a 50-foot frontage at the time of the adoption of the ordinance which required 100-foot frontage for a building on the lot in question, it constituted a non-conforming use under both the statute, R.S. 40:55--48, N.J.S.A. and section 10.1 of the ordinance; (2) that the right to use a non-conforming lot passes by subsequent conveyance to grantees; (3) that an estoppel arises in favor of the owner where the planning board approved the realignment of the lot lines so as to upgrade the frontage of Lot 366A from 50 to 62 feet; and (4) that the refusal of the board of adjustment was unreasonable, arbitrary or capricious.
The statute, R.S. 40:55--48, N.J.S.A., provides as follows:
'Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.'
The pertinent provision of the Florham Park zoning ordinance reads as follows:
'The lawful use of any building or land existing at the time of the enactment of the original ordinance or at the time of any of the amendments changing the zones or uses may be continued although such use does not conform to the provisions of this ordinance.'
When the ordinance was adopted on August 3, 1954, Lot 366A was a vacant lot with a frontage of 50 feet. The appellants argue that prior to the adoption of the ordinance Thompson Associates, Inc., their grantor, could have used the lot for the erection of a one-family dwelling, having, upon application, received a building permit therefor. They urge that such right of their grantor should not be extinguished by its conveyance of the premises to them. The record reveals that on September 27, 1954, when the appellants acquired Lot 366A, they were the owners of Lots 366B and 365A, and that the three lots had a combined frontage of 176.83 feet, more than the minimum. It is not necessary for us to pass upon the question of whether or not the appellants succeeded to the right, if any, of their grantor, for they owned contiguous lots, nor was it necessary for them to acquire Lot 366A to get out of their difficulty by reason of the survey error, for after the purchase of Lot 366B their plot had a frontage of 126.83 feet, more than the 100-foot minimum required by the ordinance. The trial court concluded, and we agree, that Lot 366A was not acquired in order to achieve conformity with the ordinance.
We find no merit in the appellants' contention that Lot 366A having a frontage of only 50 feet at the time of the adoption of the zoning ordinance was a non-conforming use and continues as such, so that they should now be permitted to build thereon a one-family dwelling. By the ordinance the surrounding area was zoned for one-family dwellings, with a minimum lot requirement of 100-foot frontage. The use at the time of the adoption of an ordinance establishes the non-conforming use which an owner is entitled to continue; it must be the same both before and after the adoption of the ordinance. Struyka v. Samuel Braen's Sons, 17 N.J.Super. 1, 85 A.2d 279 (App.Div.1951), affirmed 9 N.J. 294, 88 A.2d 201 (1952). The statute affords protection to prior existing non-conforming uses, but they may not be enlarged or extended. Borough of Rockleigh, Bergen County v. Astral Industries, 29 N.J.Super. 154, 102 A.2d 84 (App.Div.1953); Ranney v. Istituto v. Pontificio Delle Maestre Filippini, 20 N.J. 189, 119 A.2d 142 (1955). It is the actual use at the time the ordinance is adopted as distinguished from any contemplated use which determines whether or not the premises are a non-conforming use. A mere intention to build a residence is not enough to establish a non-conforming use. The statute protects existing uses, it does not deal in intentions. Martin v. Cestone, 33 N.J.Super. 267, 110 A.2d 54 (App.Div.1954); Board of County Commissioners of Anne Arundel County v. Snyder, 186 Md. 342, 46 A.2d 689, 692 (Ct.App.1946). Here, no residential use was in existence when the ordinance was adopted; hence, the premises do not constitute a non-conforming use. Walton v. Stephens, 124 N.J.L. 216, 11 A.2d 364 (Sup.Ct.1940).
The appellants next urge that their having obtained approval from the planning board for a realignment of the boundary lines of their three lots, and in particular having increased the frontage of Lot 366A from 50 to 62 feet, should operate as an estoppel, relying upon the following provision of N.J.S.A. 40:55--1.25:
'Any person who shall acquire for a valuable consideration an interest in the lands covered by any such certificate of approval of a subdivision in reliance upon the information therein contained shall hold such interest free of any right, remedy or action which could be prosecuted or maintained by the municipality pursuant to the provisions of section twenty-three of this act. * * *'
The inapplicability of the statute is readily apparent. The plaintiffs did not acquire any interest in Lot 366A by reason of the approval of the application for realignment of lot lines which could affect the municipality's right to deny an application for a building permit in violation of the zoning ordinance. Indeed, the approval contained the condition 'that no building permit be issued for Lot 366A without further referral to the Planning Board.' We need not, and do not, pass on the legal validity of such condition; it is sufficient to say that from this conditional approval the plaintiffs cannot meritoriously assert an estoppel which would preclude the municipality...
To continue reading
Request your trial