Borough of Northvale v. Blundo

• Decision Date: 06 October 1964
• Docket Number: No. A--482,A--482
• Parties: BOROUGH OF NORTHVALE, Plaintiff-Respondent, v. Mario BLUNDO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 56

85 N.J.Super. 56

203 A.2d 721

BOROUGH OF NORTHVALE, Plaintiff-Respondent, v. Mario BLUNDO, Defendant-Appellant.

No. A--482.

Superior Court of New Jersey

Appellate Division.

Argued Sept. 28, 1964.

Decided Oct. 6, 1964.

James P. Logan, Englewood, for appellant (Logan & Logan, Englewood, attorneys).

James J. Hogger, Closter, for respondent (Fornabai & Hogger, Closter, attorneys, James J. Hogger, Closter, on the brief).

Before Judges GOLDMANN, SULLIVAN and LABRECQUE.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

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 its basic zoning ordinance in September 1955. Article V, section 1, relating to the residential A zone in which defendant has his residence, provided that no building, land or premises shall be used, and no building erected, which is designed or intended to be used in whole or in part for any purpose except a one- or two-family dwelling. That section also permitted a private garage or other accessory building customarily incidental to any use permitted thereby, provided it was on the same plot. Article VI permitted the continuance of any nonconforming use or structure existing at the time of the passage of the ordinance. It is to be noted that the 1955 ordinance did not define 'accessory use,' nor in terms generally provide for uses incidental or accessory to the residence use.

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.' Defendant's business, Appliance Master Co., was advertised in prominent letters on the side panels, below which appeared his business and residence telephone numbers in equally large letters and figures. Defendant had regularly used this vehicle for going to and from his place of business.

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--522, 133 A.2d 358, (1957), the allowance of a primary use 'generally authorizes all uses normally accessory, auxiliary or incidental thereto.' After referring to several definitions of 'accessory use,' we defined the term generally as a use 'customarily incidental to the principal use' of the building. We repeated that definition in ...