Grimley v. Village of Ridgewood

• Citation: 45 N.J.Super. 574,133 A.2d 649
• Decision Date: 08 July 1957
• Docket Number: No. A--201,A--201
• Parties: Marion E. GRIMLEY et al., Plaintiffs-Appellants, v. VILLAGE OF RIDGEWOOD et al., Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court – Appellate Division

Page 574

45 N.J.Super. 574

133 A.2d 649

Marion E. GRIMLEY et al., Plaintiffs-Appellants, v. VILLAGE OF RIDGEWOOD et al., Defendants-Respondents.

No. A--201.

Superior Court of New Jersey.

Appellate Division.

Argued June 4, 1957.

Decided July 8, 1957.

Roy J. Grimley, Ridgewood, argued the cause for appellants.

Edward F. Merrey, Jr., Paterson, argued the cause for municipal defendants-respondents (Merrey & Merrey, Paterson, attorneys).

John S. Harrison, Ridgewood, argued the cause for defendant-respondent John S. Harrison (Harrison & Brown, Ridgewood, attorneys)

Before Judges CLAPP, FRANCIS and STANTON.

The opinion of the court was delivered by

FRANCIS, J.A.D.

Respondent John S. Harrison, a member of the bar of this State, is the owner of premises known as 113 Prospect Street, Ridgewood, New Jersey. The property is in the two-family zone under the zoning ordinance and structurally is accommodated to such use. On his application, the board of adjustment recommended for special reasons in the particular case, N.J.S.A. 40:55--39(d), and the board of commissioners of the village granted, a variance to permit use of the first floor of the building as a law office. The grant was subject to certain conditions, namely, (1) that the ground floor be utilized for professional offices for not more than two lawyers and three stenographic employees, (2) that the premises at all times be owned by at least one of the lawyers regularly practicing law therein, (3) that the remainder of the building be occupied only for residential purposes and not by more than one family, (4) that no alteration be made of the exterior of the building, except for improvement by repairs and repainting, (5) that provision be made for off-street parking on the premises for not less than eight automobiles, and that such facilities be open for use on Sundays and evenings by the Methodist Church or any church using the property adjoining on the north. The imposition of conditions is not uncommon and is a useful incident of variances. 1 Rathkopf, Zoning and Planning (3d ed. 1956), c. 49. The Law Division sustained the municipal action and the challenge to its validity has been continued by this appeal.

The original plaintiffs in the Law Division reside on Prospect Street in the one-family zone which begins about 400 feet south of respondent's lot. Henry T. Carey and Marion W. Carey, his wife, live at 168 Prospect Street, 750 feet south of Harrison, and Marion E. Grimley at 254 Prospect Street, which is 1,550 feet away in the same direction. The Careys are not participating in the appeal; it is being prosecuted by Marion E. Grimley alone. All of the property owners who were entitled to notice of the application for the variance approved the proposed use in writing. No resident of the two-family zone appeared in opposition.

The restriction sought to be relaxed appears in section 4 of the ordinance under the designation 'One Family Zone Uses.' It is made applicable to the two-family zone also and provides, among other things, that the

'residence may contain the professional office of its resident owner or lessee where the office work involves principally the personal service of the said owner or lessee. The office shall occupy not more than fifty percent of the first floor area of the residence. * * *.'

A description of the locality under study is important. A map which portrays it graphically is therefore included:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It will be observed that the two-family zone begins at the intersection of Hudson and Dayton streets (these streets extent east and west, and run into and appear almost in prolongation of each other) and Prospect Street. The zone goes south along both sides of Prospect Street for a distance of about 600 feet where the one-family district begins. On the north side of Hudson and Dayton streets the retail business zone starts. This is at most 250 feet from the Harrison property and, although not shown on this map, one block to the west of Prospect Street it extends for some distance both to the north and to the south.

Immediately adjoining the premises in question to the north and at the southeast corner of Prospect and Dayton streets is the Methodist Church. The church building is at the corner; next, to the east along Dayton Street, is a large Sunday School and administration building. To the rear and running along the entire rear line of the Harrison land is a sizeable parking lot for church use. The parking facilities to be provided by Harrison's agreement, which was a voluntary condition of the variance, will be used in common by parishioners and clients.

Just to the northwest, at the junction of Hudson and Dayton streets and diagonally across from this church, is an off-street bus terminal. Buses en route to Paterson from the terminal traverse Prospect Street, which is a main traffic artery running into the business area and to the south becomes a county road. Across from the Methodist Church slightly to the northwest is a Catholic Church; it is bounded on the north, south and east sides by Hudson, Passaic and Prospect streets, and its front line is about 70 feet northwest of the premises in question.

The really important circumstances and the ones on which the case turns largely are the character of the neighborhood and the use to which the houses are put along both sides of Prospect Street from the retail business zone to the one-family district. In the two-family district along Prospect Street there are only 12 houses in addition to the churches and rectory. Of these 12, six contain one or more doctors' offices and in these six are located 15 or 16 such offices. Only three of the doctors conform with the zone requirement of maintaining their residence on the premises.

On the east side of Prospect Street proceeding south from the junction of Dayton and Hudson streets are:

(1) 109--The Methodist Church, accessory buildings and parking lot;

(2) 113--Harrison's property. Here it is important to note that in 1952 the then owner was granted a variance to permit the use of the entire first floor as a doctor's office. This relaxed the requirements

(a) for residence therein by the physician (the then owner was not a physician but hoped and intended to rent to one) and

(b) that no more than 50% Of the first floor area be occupied for the purpose of a professional office.

Although occupancy by a doctor had not been procured, no evidence was adduced to show an abandonment of the variance. Apparently during the three years that intervened between the grant and the contract of sale to Harrison such a professional tenant had not been found. The mere passage of that period of time under the circumstances would not warrant a finding of relinquishment. Board of Education of Borough of Fort Lee v. Mayor, etc. of Fort Lee, 31 N.J.Super. 22, 105 A.2d 899 (App.Div.1954); cf. State v. Accera, 36 N.J.Super. 420, 116 A.2d 203 (App.Div.1955); Haulenbeek v. Borough of Allenhurst, 136 N.J.L. 557, 57 A.2d 52 (E. & A.1948); Campbell v. Board of Adjustment, 118 N.J.L. 116, 191 A. 742 (Sup.Ct.1937). Moreover, although a variance not utilized confers no vested or absolute right in the property owner, the fact that it continued to exist without express or implied revocation by the municipality is of some significance as to its current life. Reed v. Board of Standards and Appeals, 255 N.Y. 126, 133, 174 N.E. 301, 302 (Ct.App.1931).

(3) 119--a two-family house on a 51-foot lot used for residence purpose.

(4) 123--the 'Professional Building' housing the offices of seven or eight doctors; a non-conforming use.

(5) 129--the one-family residence and office of Dr. Taylor.

(6) 135--a two-family residence.

(7) 139--the office of Dr. Philip R. Schumacher, a dentist, who does not reside there. A variance was granted in 1941 to permit the use by two doctors with residence by only one.

(8) 145--one-family residence and office of Dr. Antonino Rube. His southerly line is the beginning of the one-family zone.

On the westerly side of Prospect Street the six properties are occupied as follows:

1. Block 263--the Mt. Carmel Church.

2. 102--a two-family residence.

3. 112--Dr. Vanderbeck, a one-family residence and professional office.

4. 118--a one-family residence.

5. 124--a one-family residence.

6. 130--Doctors Kritzler, Keating, Auchincloss and Richter have offices on the first floor; a tenant resides on the second. This use is pursuant to a variance allowed in 1952.

At this point the one-family zone begins.

As already indicated, the application for variance was made under N.J.S.A. 40:55--39(d) which authorizes the board of adjustment to recommend and the governing body to grant variances 'in particular cases and for special reasons'. A...