Hantman v. Randolph Tp.

Decision Date13 November 1959
Docket NumberNo. A--541,A--541
PartiesNorman HANTMAN and Ada Hantman, his wife, Plaintiffs-Appellants, v. TOWNSHIP OF RANDOLPH, a municipal corporation, etc., et al., Defendants-Respondents.
CourtNew Jersey Superior Court — Appellate Division

Ralph Porzio, Morristown, for plaintiffs-appellants.

Harry L. Sears, Boonton, for defendants-respondents (Young & Sears, Boonton, attorneys).

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

FREUND, J.A.D.

Plaintiffs, Norman and Ada Hantman, are owners of premises in Randolph Township, Morris County, consisting of 12 structures, comprising 19 dwelling units and a central recreation hall, all of which were described in the testimony as 'another one of the bungalow colonies.' They brought this action in lieu of prerogative writs principally to obtain a declaratory judgment that they are entitled to occupy or lease the dwelling units throughout the entire year, as against the contention of the defendant township that residential occupancy of the units must have a seasonal limitation. The Law Division sustained the township's position and entered judgment restraining use of the bungalows 'during that period of the year when heat is required full time to render such structure(s) habitable.' The basis for the issuance of the injunction was the court's finding that year-round occupancy of the units would constitute an unlawful extension of a nonconforming use.

We have recently reviewed the zoning history of Randolph Township as it relates to the peculiar problems created by the location there of 40 or 50 bungalow colonies with a combined total of 600 living units. See Brundage v. Randolph Tp., 54 N.J.Super. 384, 148 A.2d 841 (App.Div.1959), affirmed per curiam 30 N.J. 555, 154 A.2d 581 (1959). We assume familiarity with the facts and ordinances therein discussed. It suffices here to repeat that many of the bungalow colonies have existed in the township since prior to 1938 when the first zoning ordinance was enacted. Most of the colonies, including that of plaintiffs, were located in areas later designated as residential zones. Not compliant with residential use regulations in such particulars as minimum permissible floor space, the bungalows were throughout the years nonconforming uses.

In February 1957, however, the township, through its planning board and township committee, decided to 'legalize' the bungalow industry. An ordinance of that month established a B--3 resort business zone, consisting of four widely scattered districts, within which the colonies would be permitted uses and, as such, allowed to be improved upon by their respective owners. Until specific use regulations were provided--and they were not until an ordinance was enacted in November 1957--the B--3 zones were to be governed by the same regulations as had been provided for the R--2 one-family residential zone.

It was not until November 1957 that an ordinance was adopted defining a bungalow colony and permitting occupancy of the rental units 'only on a seasonal basis, viz.: May 1 through September 30th.' The defendant has stipulated in the pre-trial order that this particular ordinance will not be relied upon to defeat plaintiffs' rights, if any, to lease the units on a year-round basis.

Plaintiffs' 11 dwellings and casino are on 5 1/2 acres of land. Six buildings accommodate one family each, three can house two families, one can be rented to three families, and one to four families. They range in floor area from 750 to 1,330 square feet; all are one story in height and have basements and heating facilities. Plaintiffs maintain they have all the necessary facilities and improvements for full-time occupancy. Mr. Hantman testified that he and his brother had occupied two of the buildings full-time in 1937 and that during the war years there was some year-round occupancy by workers in defense plants in the county.

In June 1957 plaintiffs applied for building permits for the erection of chimneys. The permits were granted and the chimneys installed. On September 11, 1957 the building inspector issued a stop work notice. A letter of that day explained that the proposed change of use from 'Summer Bungalows' to all-year-round dwellings violated that section of the zoning ordinance prohibiting any extension or change of a nonconforming use without a certificate of occupancy from the building inspector. By this date, plaintiffs had entered into leases with eight or nine tenants 'on a permanent basis,' with month-to-month rental arrangements.

At the trial the building inspector testified that he observed 'no marked difference in general construction details' or in size and accommodations offered between plaintiffs' units and the balance of the 600 bungalows in the township. Defendant also produced Herbert H. Smith, the township's planning and zoning consultant. He said that the resort uses occupy 18% Of the total land developed in the municipality. The bungalows varied markedly, ranging from a 'fairly elaborate type' to those he classified as 'actually being blighted.' This expert considered the colonies as a business enterprise deserving of special attention and standards, rather than as being residential in character. He described the Hantman grouping as 'representative'--'the typical arrangement.' He testified in part as follows:

'* * * to me this is one of the most important principles in the future planning and zoning of Randolph Township, and that is that the only logical way in which these uses, the bungalow colonies and hotels and all of the others that go into these seasonal use, can be treated in such a way that they will not become a blighting factor on the future community is to make certain that the seasonal occupany and the seasonal use is absolutely preserved and that it is never extended in these areas, that is, it is never extended to what might be classified as year round or general usage.'

The Law Division judge ruled that although plaintiffs' structures had been used for dwelling purposes, the colony constituted a business use. He found that whatever full- time occupancy there had been in the past was 'sporadic' and 'incidental to the primary business conducted,' and accordingly determined that at the passage of the ordinance in February 1957 plaintiffs' business use 'must be viewed as having been seasonable in nature.' His conclusion was that yearly occupancy would constitute an extension, in point of time, of a nonconforming use, and therefore that the township was entitled to injunctive relief.

There is nothing in the record to warrant a substituted finding of fact on the question of the existence of yearly occupancy in the past, and we affirm without further discussion the trial court's negative finding in this respect. R.R. 1:5--4(b), R.R. 2:5.

The principal thesis developed by plaintiffs on this appeal seems to be that the trial court was in error in finding that the Hantman colony was a nonconforming use and therefore not enlargeable. It is urged that since the governing body had not prescribed use regulations for the resort zone specifically limiting occupancy on a seasonal basis, it was not for the building inspector to accomplish the same result by the issuance of the September 1957 stop work notice. See Antonelli Construction v. Milstead, 34 N.J.Super. 449, 456, 112 A.2d 608 (Law Div.1955). Plaintiffs' position is, in essence, that a hiatus existed after the passage of the February 1957 ordinance and prior to the passage of the November 1957 ordinance, during which the bungalow owners had the right to use their properties in any lawful way, including year-round occupancy. If this argument prevails, plaintiffs will then be in a position to claim that they had a nonconforming use of full-time occupancy protected (by R.S. 40:55--48, N.J.S.A.) from the seasonal restriction imposed by the November ordinance.

This contention rests on the premise that the colonies ceased to be nonconforming uses once the February 1957 ordinance became law. There is no question but that plaintiffs' business, located as it was in a residential zone, was a non-conforming use up to the month of February. The issue is, therefore, whether the February ordinance had the effect of making plaintiffs' business a conforming use for the following nine months. If so, plaintiffs could extend such use, and such extension would in turn become nonconforming in respect of the November ordinance.

It is clear to us that the ordinance had no such effect. No intent is revealed therein to relieve the B--3 resort business zone from the necessity of complying...

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