Avalon Home and Land Owners Ass'n v. Borough of Avalon

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: PER CURIAM; Similarly
• Citation: 111 N.J. 205,543 A.2d 950
• Decision Date: 25 July 1988
• Parties: AVALON HOME AND LAND OWNERS ASSOCIATION, John Cairns and Margaret Cairns, his wife, Edward P. Crippen, Frances J. Morris and Mary K. Morris, Plaintiffs-Respondents, v. BOROUGH OF AVALON, Michael Macrina, Harry Clayton, and P & D Partnership, Defendants, and Philtone, Inc., Defendant-Appellant.

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111 N.J. 205 543 A.2d 950 AVALON HOME AND LAND OWNERS ASSOCIATION, John Cairns and
Margaret Cairns, his wife, Edward P. Crippen,
Frances J. Morris and Mary K. Morris,
Plaintiffs-Respondents,
v.
BOROUGH OF AVALON, Michael Macrina, Harry Clayton, and P & D
Partnership, Defendants,
and
Philtone, Inc., Defendant-Appellant. Supreme Court of New Jersey. Argued Jan. 19, 1988.
Decided July 25, 1988.

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Stephen Hankin, Atlantic City, for defendant-appellant (Hankin, Sandson & Sandman, attorneys).

Kenneth A. DiMuzio, Woodbury, for plaintiffs-respondents (Hoffman, DiMuzio, Hoffman & Marcus, attorneys).

PER CURIAM.

The narrow issue in this case concerns the validity of a municipal ordinance that authorizes the restoration or replacement of any structures within the municipality that accommodate nonconforming uses, provided that the size of the replacement structure, measured by its "cubicle content," does not exceed the size of the existing structure. The Law Division invalidated the ordinance. In an unreported opinion, the Appellate Division affirmed substantially for the reasons stated by the trial court. We granted certification, 108 N.J. 218, 528 A.2d 36 (1987), and now affirm.

I

Defendant Philtone, Inc. (Philtone) is the owner of the Hotel Avalon, a fifty-room hotel located in the Borough of Avalon (Borough). When Philtone acquired the hotel in 1966, the hotel was a permitted use under the local zoning ordinance. The area was later rezoned for one-family residential dwellings and the hotel became a nonconforming use.

In 1980 the Borough adopted an ordinance to permit restoration and replacement of nonconforming uses under prescribed conditions. (Borough of Avalon, N.J., Ordinance No. 78-80 (July 25, 1980) (codified as amended at Borough of Avalon, N.J., Rev.Ord. § 27-7.5 (Supp.1981)). ¹ According[543 A.2d 951] to its preamble, the

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ordinance had as its purpose the encouragement of renovation of structures that accommodate nonconforming uses. The preamble noted that in the past only the interiors of such buildings had been renovated, resulting in unsafe and aesthetically unappealing structures.

The ordinance thus permits reconstruction of nonconforming uses provided the new structure has no greater "cubicle content" ² than the existing structure. Avalon, N.J., rev. ord. § 27-7.5a(1). It permits the new structure to have a different configuration or design from that of the existing structure, and allows an increase in the land coverage of the existing structure over that permitted by the applicable zoning provisions. Id.,

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§ 27-7.5a(2), (3)(d). With regard to height and setbacks, the new structure may either perpetuate the height and setbacks of the existing structure or comply with the requirements of the zoning ordinance. Id., § 27-7.5a(3)(c), (e).

The ordinance also provides that at least ten percent of the pre-existing foundation or exterior walls must be used in the construction of the new structure, but the use of this material as fill fulfills this requirement. Id., § 27-7.5a(3)(a).

Pursuant to the 1980 ordinance, Philtone received approval in 1985 from Avalon's planning board to demolish and reconstruct the Hotel Avalon. As it now exists, the hotel can accommodate approximately one hundred guests. It also contains a nightclub with a maximum capacity of 967 occupants. The proposed structure would accommodate approximately 196 guests in forty-six two-bedroom units and four one-bedroom units. A lounge with a capacity of fifty-six persons would replace the existing nightclub.

The planning board concluded that the proposed reconstruction did not constitute an enlargement of the existing structure, since the figures compiled by the Borough's Construction Department revealed a reduction in "cubicle content" of 4027 cubic feet. However, the Department's calculation of the size of the existing hotel included a garage measuring 32,000 cubic feet that had been torn down in 1967. Without the garage, the existing structure measured 391,735 cubic feet, while the proposed plan contemplates a structure of 419,708 cubic feet.

An architectural consultant certified that the proposed structure, like the existing structure, would be nonconforming in both height and side-yard setbacks, but would meet all other applicable bulk zoning requirements of the Borough. The new site plan would also enable the hotel to comply with the Borough's requirements for parking spaces.

Before the reconstruction commenced, plaintiff Avalon Homeowners Association challenged the validity of Avalon's ordinance. Named as defendants were P & D Partnership, a

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developer that had received approval to reconstruct a different nonconforming[543 A.2d 952] use pursuant to the ordinance, as well as the Borough and several of its officials. Philtone, seeking to uphold the ordinance and its approval, intervened as a defendant, and P & D Partnership was subsequently dismissed on its own motion.

The Law Division granted plaintiff's motion for summary judgment, invalidating the Avalon ordinance and enjoining Avalon officials from issuing any permits pursuant to the ordinance. The trial court held that the ordinance permitted more than partial demolition and replacement of nonconforming uses contrary to N.J.S.A. 40:55D-68, which the court construed as permitting only partial renovations of nonconforming structures. In addition, the court found the ordinance invalid because it permitted enlargements of nonconforming uses or structures without a variance from the Borough's board of adjustment, contrary to N.J.S.A. 40:55D-70(d).

While the litigation was pending, Philtone applied for a variance from Avalon's board of adjustment to reconstruct the Hotel Avalon. The board of adjustment approved the variance. ³

II

The fundamental legal principles governing nonconforming uses are well established. They were succinctly summarized by Justice Clifford in Belleville v. Parillo's, Inc.:

Historically, a nonconforming use has been looked upon...