Krul v. Board of Adjustment of City of Bayonne

• Decision Date: 19 December 1972
• Parties: Jack KRUL, t/a United Roofing & Sheet Metal Co., Plaintiff, v. BOARD OF ADJUSTMENT OF the CITY OF BAYONNE, Defendant.
• Court: New Jersey Superior Court

Page 18

122 N.J.Super. 18

298 A.2d 308

Jack KRUL, t/a United Roofing & Sheet Metal Co., Plaintiff, v. BOARD OF ADJUSTMENT OF the CITY OF BAYONNE, Defendant.

Superior Court of New Jersey,

Law Division.

Dec. 19, 1972.

Fred R. Gruen, Union, for plaintiff (Gruen & Goldstein, Union, attorneys).

Cresenzi W. Castaldo, Bayonne, for defendant.

LARNER, A.J.S.C.

Since 1957 plaintiff Jack Krul has been conducting a business at 94--96 East 22nd Street, Bayonne, New Jersey, for the storage, sale and distribution of sheet metal and roofing materials and supplies under the trade name of United Roofing and Sheet Metal Co. He held equitable title under a purchase contract for several years until 1961, when legal title was conveyed to him by deed from the former owner. The plot of land covered an area of 125 125 on the southeast corner of Avenue F and 22nd Street. The deed described the property by metes and bounds with an additional reference to the designation on the tax map of the city as Lots 8, 8 1/2, 9, 9 1/2, 10 and 10 1/2 in Block 305. The tax map reflects the plot of land as divided into six separate lots, each having the dimensions of 25 100 .

The property was in a light industrial zone, permitting plaintiff's use throughout his ownership until 1969 when the city adopted a new comprehensive zoning ordinance which changed the permitted use to multi-family residential. Thereafter, plaintiff's use and structures continued without interruption as a protected nonconforming use pursuant to N.J.S.A. 40:55--48 and the local ordinance provision, Art. 7, § 701.

On or about February 18, 1972 a fire destroyed one of the buildings which was known as Hooper Cooper Hall. It is undisputed that for all practical purposes this building was totally destroyed, as a result of which the remainder had to be razed, leaving only the foundation. The demolished building was an old three-story frame structure which had been constructed on a portion of the premises measuring 50 100 and located at the very corner of Avenue D and East 22nd Street on Lots 8 1/2 and 9 as designated on the tax map.

For some years prior to the change in zone Hooper Cooper Hall was the main building of a complex of buildings and was used for purposes connected with plaintiff's business. The first and second floors were used for the storage of many of the metal items and other supplies which required heat and shelter for protection. The third floor was divided into two apartments which were rented out as dwelling units. In addition there was one office on the first floor and another small private office on the second floor. The basement was also used for warehousing of materials.

In addition to this main building which served as the hub of the business use, as the enterprise grew, plaintiff constructed a series of one-story buildings around the perimeter of the plot with either corrugated metal or Fiberglas walls. These were, in essence, unheated sheds for the storage of roofing materials and supplies which would not be affected by weather changes. The outside walls of these perimeter buildings and Hooper Cooper Hall formed the street enclosure for the entire complex, except for two sets of gates for ingress and egress. The storage sheds were constructed on parts of Lots 8, 9 1/2 and 10 1/2 and all of Lot 10. The remaining open area was utilized for driveway and parking purposes. The roofs of these buildings were all connected and, in turn, tied in physically to Hooper Cooper Hall so that one could go from one building to another without going into the center yard.

After the fire plaintiff applied for a building permit to construct a one-story fireproof building for the same business use on the old foundation of Hooper Cooper Hall within the confines of Lots 8 1/2 and 9 and containing a total area substantially less than the prior structure. The permit was denied by the zoning officer because of the violation of the use permitted in that zone by the 1969 ordinance. Application was then made to the board of adjustment for a reversal of the determination of the zoning officer, seeking relief on two theories: (1) the right to restore the structure as a protected nonconforming use, and (2) the grant of a variance under N.J.S.A. 40:55--39(d).

The board of adjustment held a hearing on June 19, 1972 at which evidence was submitted by the applicant and neighboring property owners. The board denied the application for a variance, finding that the use would 'substantially impair the intent and purpose of the zone plan and zoning ordinance' and would be 'detrimental to the public safety, health and general welfare.' As to the appeal from the zoning officer's decision denying the application to restore the nonconforming use, the board concluded that the Total destruction of the building known as Hooper Cooper Hall deprived plaintiff of the protection under N.J.S.A. 40:55--48 and sections 701 and 702 of the local ordinance, since they limit the right to restore or repair only in the event of Partial destruction.

Plaintiff thereupon proceeded by action in lieu of prerogative writs to review the refusal of the board to grant the requested relief. After issue was joined, plaintiff moved for summary judgment on one facet of his application, claiming a right to the building permit as a matter of law by virtue of the claim that the destruction of the single building in the total complex constitutes a 'partial' destruction under the applicable statute and ordinance, so as to permit restoration of the prior nonconforming structure and use.

At the court's suggestion plaintiff supplemented the record before the board of adjustment by additional testimony relating to the characteristics of the structures and their use prior to the adoption of the 1969 ordinance. The operative facts recited above are therefore based not only upon the record before the board of adjustment but also the supplemental testimony presented to the court. In toto, those facts were not controverted, and therefore utilization of the summary judgment procedure is appropriate.

The motion brings into focus the key legal issue in controversy. Does the statutory authorization to continue a nonconforming use or structure by repair or restoration after partial destruction permit such continuance when one of several buildings in a business complex is totally destroyed? This question has not been answered in any reported opinion in the State of New Jersey.

N.J.S.A. 40:55--48 provides:

Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.

With similar intent, section 702 of the zoning ordinance of 1969 reads:

702. RESTORATION OF EXISTING BUILDINGS. Nothing in this Ordinance shall prevent the restoration of a non-conforming building partially destroyed by fire, explosion, act of God or act of public enemy, or prevent the continuance of the use of such building or part thereof as such use existed at the time of such partial destruction of such building or part thereof or prevent a change of such existing use under the limitations provided in Section 701.

The legislative policy inherent in these enactments is twofold. First, it protects a use or structure which pre-existed a change in zoning law from the effects of the new restrictions. To dictate otherwise would probably result in an unconstitutional deprivation of property without due process of law. Grundlehner v. Dangler, 29 N.J. 256, 148 A.2d 806 (1959); Ranney v. Istituto Pontificio Delle Maestre Filippini, 20 N.J. 189, 119 A.2d 142 (1955); Arkam Mechine & Tool Co. v. Lyndhurst Tp., 73 N.J.Super. 528, 180 A.2d 348 (App.Div.1962). Secondly, it permits restoration or repair of such a nonconforming structure in the event of partial destruction subsequent to the new zoning restrictions, provided that there is no enlargement or extension of the structure or use. Rockleigh Borough v. Astral Industries, Inc., 29 N.J.Super. 154, 102 A.2d 84 (App.Div.1953); Adler v. Dept. of Parks, Irvington, 20 N.J.Super. 240, 89 A.2d 704 (App.Div.1952); Struyk v. Samuel Braen's Sons, 17 N.J.Super. 1, 85 A.2d 279 (App.Div.1951) aff'd 9 N.J. 294, 88 A.2d 201 (1952).

The right to restore or repair thus is limited by the caveat that the structure be only partially destroyed. This precondition is imposed in recognition of a policy that preexisting discordant uses should be closely restricted and reduced to conformity as soon as it is possible provided that the restriction is compatible with justice. Hay v. Bd. of Adjustment, 37 N.J.Super. 461, 117 A.2d 650 (App.Div.1955); Grundlehner v. Dangler, Supra; Arkam Machine & Tool Co. v. Lyndhurst Tp., Supra; Ranney v. Istituto Pontificio Delle Maestre Filippini, Supra.

This policy of strict containment of nonconforming uses is balanced however by the underlying concept of fairness and justice which dictates that government shall not deprive a property owner of his investment by legislation adopted Ex post facto. Thus where the destruction of a building is only partial, restoration or repair is permitted to protect and maintain that investment in recognition of the right of the property owner to continued protection of his use free of the restriction imposed subsequent to the vesting of that use.

If, however, a structure is destroyed...