Brandt v. Zoning Bd. of Adjustment of Mount Holly Tp.
| Decision Date | 24 October 1951 |
| Docket Number | No. A--414,A--414 |
| Parties | BRANDT v. ZONING BOARD OF ADJUSTMENT OF MOUNT HOLLY TP. et al. |
| Court | New Jersey Superior Court — Appellate Division |
Robert W. Criscuolo, Mount Holly, argued the cause for appellants (Parker, McCay & Criscuolo, Mount Holly, attorneys).
James M. Davis, Jr., Mount Holly, argued the cause for respondent.
Before Judges JACOBS, EASTWOOD and BIGELOW.
The opinion of the court was delivered by
JACOBS, S.J.A.D.
This is an appeal from a judgment entered in the Law Division directing that the plaintiff be granted a variance from the terms of the zoning ordinance of the Township of Mount Holly.
The plaintiff is the owner of premises located within the district known as residence 'A' under the zoning ordinance adopted in 1946 by the Township of Mount Holly. The premises within the district are devoted to residential and agricultural purposes; however, the plaintiff has sold coal at retail at his premises since 1932 and has lawfully continued this business as a nonconforming use. The increasing shift by consumers from coal to oil heating made his entry into the retail fuel oil business economically desirable and in 1949 he sought permission to engage additionally in the fuel oil business. Pursuant to application the board of adjustment in 1949 recommended that a variance be granted but the Township of Mount Holly never approved this recommendation. In 1950 the plaintiff applied to the zoning administrative officer of the township for a certificate of occupancy to permit him to store fuel oil but his application was denied. He then appealed to the board of adjustment seeking a recommendation for variance (R.S. 40:55--39(d) N.J.S.A.) to sanction his erection and maintenance above ground of three cylindrical tanks of 10,000 gallons each for the storage of fuel oil and his sale of fuel oil in addition to coal. After due hearing the board of adjustment dismissed his appeal on the ground that the variance would be inconsistent with the spirit and purpose of the zoning ordinance.
Thereupon the plaintiff filed a complaint in the Law Division of the Superior Court (Rule 3:81--2) and the parties executed a stipulation which set forth, in addition to the foregoing facts, that the area had recently undergone rapid residential development including the construction of 42 houses, the nearest of which was 300 or 400 feet from the point where the oil tanks were sought to be placed. Paragraph 2 of the stipulation stated that 'the question for the determination of the Court is as to whether or not the hardship to the plaintiff in the premises outweighs or is outweighed by the public policy enunciated in the zoning ordinance.' Acting on the stipulation the lower court concluded that a variance should be granted and entered judgment compeling such relief from the defendants.
It is settled that although R.S. 40:55--48, N.J.S.A. permits the continuance of nonconforming uses it does not contemplate their enlargement or extension. Home Fuel Oil Co. v. Board of Adjustment of Glen Rock, 5 N.J.Super. 63, 67, 68 A.2d 412 (App.Div. 1949). Indeed, recent decisions by our courts have stressed that the spirit of the Zoning Act is to restrict rather than increase nonconforming uses and that authority to vary the application of general zoning restrictions should be sparingly exercised. Lumund v. Board of Adjustment of the Borough of Rutherford, 4 N.J. 577, 585, 73 A.2d 545 (1950). In R.S. 40:55--39, N.J.S.A. which relates primarily to variances and exceptions the Legislature has, among other matters, directed that relief thereunder shall not be had unless it can be granted 'without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.' A board's action in denying such relief is presumptively correct and the burden is upon the person attacking it to prove otherwise. See Sitgreaves v. Board of Adjustment of Nutley, 136 N.J.L. 21, 26, 54 A.2d 451 (Sup.Ct. 1947); National Lumber Products Co. v. Ponzio, 133 N.J.L. 95,...
To continue reading
Request your trial
-
Value Oil Co. v. Town of Irvington
...168 A.2d 864 (Law Div.1961). The burden of establishing such improper action is upon the applicant. Brandt v. Mt. Holly Tp. Bd. of Adj., 16 N.J.Super. 113, 117, 84 A..2d 18 (App.Div.1951). On their face, §§ 903.2 and 904.7 et seq. would seem to indicate that a granting of a special use perm......
-
Ward v. Scott
...89 A.2d 233 (1952); 165 Augusta Street, Inc., v. Collins, 9 N.J. 259, 265, 87 A.2d 889 (1952); Brandt v. Zoning Bd. of Adjustment, Mt. Holly Tp., 16 N.J.Super. 113, 117, 84 A.2d 18 (App.Div.1951). In the instant matter we are not concerned with an ordinance amendment which would permit not ......
-
Mistretta v. City of Newark
...of Parsippany-Troy Hills Township, 29 N.J.Super. 164, 102 A.2d 73 (App.Div.1953); Brandt v. Zoning Board of Adjustment of Mount Holly Township, 16 N.J.Super. 113, 117, 84 A.2d 18 (App.Div.1951). The statutory grant of power to the Board of Commissioner of the City of Newark and its board of......
-
Roth v. Rutherford Rent Bd.
...the action of the board is presumptively valid and the burden is on plaintiffs to show otherwise. Brandt v. Mt. Holly Bd. of Adj., 16 N.J.Super. 113, 84 A.2d 18 (App.Div.1951). This can only be done by showing that the action taken was arbitrary, capricious, and unreasonable. Kramer, supra ......