Frank v. Luther

• Decision Date: 04 March 1952
• Docket Number: No. A--674,A--674
• Citation: 18 N.J.Super. 193,87 A.2d 17
• Parties: FRANK v. LUTHER et al.
• Court: New Jersey Superior Court — Appellate Division

Page 193

18 N.J.Super. 193

87 A.2d 17

FRANK v. LUTHER et al.

No. A--674.

Superior Court of New Jersey

Appellate Division.

Argued Feb. 18, 1952.

Decided March 4, 1952.

Alfred W. Kiefer, Hackensack, argued the cause for the appellant (Draesel & Dorfman, Hackensack, attorneys).

Walter H. Jones, Hackensack, argued the cause for the respondents (Cleary Pelletier, Closter, attorney).

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 sustaining the Closter Board of Adjustment's refusal to direct the issuance of a building permit sought by the plaintiff.

The plaintiff is the owner of property located at the southeast corner of Schraalenburgh Road and Old Hook Road within a residence zone. There is a gasoline service station on the premises which has been operated since 1940 as a nonconforming use. It consists of a small building containing 192 square feet, a nearby open grease pit occupying 264 square feet, an open kerosene area immediately in the rear of the building occupying 96 square feet, and an open driving, tank, and pump area occupying 3,587 square feet. The plaintiff proposes to alter his premises, largely by the construction of a new building adjacent to and joining the existing building; this new building would house the present grease pit and would contain 784 square feet. The building inspector refused to grant a permit to the plaintiff on the ground that its construction would be in violation of the zoning ordinance of Closter. The plaintiff appealed to the board of adjustment contending that he had the legal right to make his proposed alteration under section 10 of the Closter zoning ordinance which provides that nothing therein 'shall be deemed to prevent the extension of facilities for a nonconforming use to the extent of fifty per cent (50%) of the floor space available at the time of the passage of this ordinance, provided, however, that all regulations contained in this ordinance for front yards, side yards, rear yards, lot coverage and height of buildings for the district in which the premises are located shall be strictly complied with.' This contention was rejected first, on appeal to the board of adjustment, and again, on judicial review under Rule 3:81--2 before the Law Division.

Although the premises would still be used as a gasoline service station, it seems clear that the proposed alteration would substantially enlarge or extend the present nonconforming structure and use. See DeVito v. Pearsall, 115 N.J.L. 323, 180 A. 202 (Sup.Ct.1935); Pieretti v. Johnson, 132 N.J.L. 576, 41 A.2d 896 (Sup.Ct.1945); Green v. Board of Commissioners of City of Newark, 131 N.J.L. 336, 36 A.2d 610 (Sup.Ct.1944); Meixner v. Board of Adjustment of City of Newark, 131 N.J.L. 599, 37 A.2d 678 (Sup.Ct.1944); Monmouth Lumber Company v. Township of Ocean, 9 N.J. 64, 87 A.2d 9 (1952). The only existing building on the premises is small and contains but 192 square feet; the proposed new building which would join it would be over four times its size and contain 784 square feet. While R.S. 40:55--48, N.J.S.A. permits the continuance of nonconforming structures and uses it does not contemplate their enlargement or extension; 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 under R.S. 40:55--39, N.J.S.A. to vary the application of general zoning restrictions should be sparingly exercised. Lumund v. Board of Adjustment of Borough of Rutherford, 4 N.J. 577, 585, 73 A.2d 545 (1950). In Lane v. Bigelow, 135 N.J.L. 195, 198, 50 A.2d 638, 640 (E. & A.1946)...