Burmore Co. v. Smith

• Decision Date: 18 April 1940
• Docket Number: No. 37.,37.
• Citation: 12 A.2d 353,124 N.J.L. 541
• Parties: BURMORE CO. et al. v. SMITH et al.
• Court: New Jersey Supreme Court

12 A.2d 353

124 N.J.L. 541

BURMORE CO. et al.

v. SMITH et al.

No. 37.

Court of Errors and Appeals of New Jersey.

April 18, 1940.

Appeal from Supreme Court.

Certiorari proceeding by Burmore Company and Walther Matthews against Herbert C. Smith, Building Inspector of Ocean City, New Jersey, the Board of Adjustment of Ocean City, and the City of Ocean City, to review action of Board of Adjustment in affirming action of Building Inspector who denied application of Walther Matthews for a permit to make an addition to his building. From a judgment for defendants, the prosecutors appeal.

Affirmed.

Bleakly, Stockwell, Lewis & Zink, of Camden, for appellants.

French B. Loveland, of Ocean City, for respondents.

PERSKIE, Justice.

This is a zoning case. Burmore Co., and its tenant, Walther Matthews, appellants here and prosecutors below, seek to review the judgment of the Supreme Court affirming the judgment of the Board of Adjustment which in turn affirmed the action of the administrative officer (building inspector) who denied the application made by Walther Matthews for a permit to make an addition to his building more particularly hereinafter described.

The facts are stipulated. Burmore Co. is the owner of a lot at the boardwalk between St. James Place and First Street, Ocean City, N. J. This lot has a boardwalk frontage of 130 feet and a landward depth of 100 feet. It also extends, the full width of 130 feet, oceanward of the boardwalk, 180 feet, more or less, to the high water line. The boardwalk is 24 feet wide and bisects this lot, which is designated on the official map of Ocean City as "O. F. 3, Lot 7 K." In the deed to Burmore Co., the land "is described as one lot."

There are two frame structures on this lot. One was constructed by Walther Matthews in 1932 pursuant to a permit granted by the city. The cost of construction, as stated in the permit, was $250. This structure is located 18.7 feet southwesterly from the southwesterly line of St. James Place and is 25.6 feet wide, 24.1 feet deep and 16 feet high. The second structure was constructed in 1934, also pursuant to a permit granted by the city, by one Virginia Tinkler, another tenant of Burmore Co. The cost of construction, as stated in this permit, was $700. This structure is located at the corner of First Street and the boardwalk, and is 16.25 feet wide and 22.5 feet deep. Both structures, since their construction, have been used during the summer months for the sale of bathing paraphernalia, cigars, candy, frankfurters, hamburgers, soft drinks and the like.

The land oceanward of the boardwalk has been and is being used by the public generally as a bathing beach. Additionally, Burmore Co., pursuant to city license, rents same to a tenant who in turn rents out the use of beach chairs and umbrellas thereon.

In this posture as to the use of the property, the city of Ocean City passed a zoning ordinance on March 16, 1938. By this ordinance appellants' property was placed in the district or zone specified as "Zone 1 —family residence districts." Thereafter, on April 26, 1938, Walther Matthews applied to the building inspector for a permit to build an addition (16 feet by 24 feet) to his existing frame structure to be used chiefly to increase the store space and to provide a bed room. The building inspector denied the permit. Appellants appealed to the Board of Adjustment which also denied the permit. Both denials were rested upon the premise that to grant the permit would be to extend or enlarge a non-conforming use of the structure.

On certiorari, Mr. Justice Porter, sitting alone, determined that the zoning ordinance was a proper exercise of power and that the action of the Board of Adjustment was neither arbitrary, nor capricious, nor unreasonable. Hence this appeal.

Many and varied are the assaults made upon the zoning ordinance. But few of these assaults, in our opinion, require consideration in this cause.

1. Is the ordinance unreasonable? It is contended that the property in question was not properly zoned for residential purposes because the district was in fact commercial and not residential. Our careful study of the proofs impels the conclusion that there is no substance or merit to this contention. The non-conforming uses in this district are very few in number and consist for the most part of practically temporary structures.

If we bear in mind that the zoning amendment (Par. 5, sec. VI, Art. IV.) did not become a part of our constitution until October 18, 1927, that our enabling act (Chap. 274, P.L. 1928, p. 696), did not take effect until April 3, 1928, and that thereafter a municipality was obliged to exercise the powers conferred upon it (R.S. 40:55-30, 32, N.J.S.A. 40:55-30, 32), with due regard to the then existing use made of "buildings and structures" in each specified district (R.S. 40:55-48, N.J.S.A. 40:55-48), it becomes increasingly clear that the problem of municipal zoning is not altogether free from difficulty. The legislature recognized that difficulty. In order, however, to observe the "spirit of the ordinance" and to administer "substantial justice," the legislature made provisions for the granting of exceptions to and variances from the terms of zoning ordinances to relieve, under special conditions, undue hardship. But the legislative sine qua non for the granting of a variance is that it "will not be contrary to the public interest." R.S. 40:55-39, N.J.S. A. 40:55-39. Thus it has been held that "the existence of nonconforming business uses in a relatively small portion of an area reasonably and naturally comprising a residential unit, docs not serve to disable the municipality from so classifying the whole." Dubin v. Wich, 120 N.J.L. 469, 200 A. 751, 753. The proofs are plenary and clear that the specified district here has not assumed the characteristics of a business district. The photographs submitted of some of the typical houses in the district leave no doubt as to the fact that the district consists of high class private homes. Nor is there any proof to support the suggestion that the lands and structures thereon adjoining the boardwalk are usable only for business purposes. On the contrary, as already observed, the proofs fully support the claim that the section of the boardwalk embracing appellants' property is almost, if not entirely, exclusively residential.

In reaching that result we have not overlooked Section (2), subdivision (b), of the ordinance, which defines a lot as follows: "(b) Lot. A lot is a parcel of land, the location, dimension and boundaries of which are determined by the latest official record; but no lot for building construction and/or usage as herein defined, shall hereafter be less in width and depth than the original lot as recorded, planned and filed for that section of the City in which said lot is located. For all land not plotted or subdivided as aforesaid a lot shall not be less in size than 35 ft. by 100 ft."

The suggestion is made, in passing (it does not appear to...