Midland Park Coal & Lumber Co. Inc. v. Terhune
| Decision Date | 23 January 1948 |
| Docket Number | No. 251.,251. |
| Citation | 56 A.2d 717,136 N.J.L. 442 |
| Parties | MIDLAND PARK COAL & LUMBER CO., Inc. v. TERHUNE et al. |
| Court | New Jersey Supreme Court |
Certiorari proceeding by the Midland Park Coal & Lumber Co., Inc., against Maitland B. Terhune and others to review a denial by the Board of Adjustment of the Village of Ridgewood of an application for a special exception to village zoning ordinance, and to review the action of the Board of Commissioners of the Village of Ridgewood denying application for permission to erect a fence.
Writ dismissed.
May term, 1947, before DONGES, COLIE and EASTWOOD, JJ.
Chauncey A. Plyley, of Ridgewood, for prosecutor.
William E. Reinhardt, of Ridgewood, for defendants.
Certiorari was allowed to review the denial by the Board of Adjustment of the Village of Ridgewood of prosecutor's application for a special exception to the village Zoning Ordinance, so as to permit use by prosecutor of certain of its lands for the storage of lumber, building materials and coal, in connection with a similar business now conducted by it on an adjoining tract located partly in the Village of Ridgewood and partly in the Borough of Midland Park. A review of the action of the Board of Commissioners of the Village of Ridgewood denying prosecutor's application for permission to erect a fence encircling the premises in question, 8 feet in height, topped by barbed wire, is also sought in these proceedings. The matter is submitted on an agreed stipulation of facts and photographic exhibits of the locus tending to reveal the factual conditions and circumstances of the same.
The prosecutor has operated a lumber and storage yard for coal and building materials for a considerable number of years. Its property is bounded northerly by Lake Avenue in the Borough of Midland Park, having a frontage of approximately 340 feet on the southerly side thereof. The property then extends in a southerly direction crossing the boundary line between the Borough of Midland Park and the Village of Ridgewood of approximately the same width, into Ridgewood, with a depth of approximately 125 feet on the easterly side and somewhat over 200 feet on the westerly side. At its southerly terminus prosecutor's yard abuts and adjoins the premises in question. The existing lumber and coal yard was used as such at the time of the adoption of the Zoning Ordinance in 1931 and has been continued as a non-conforming use down to the present time. The existing lumber and coal yard and the tract now sought by prosecutor to be used for like purposes are located in a Single Dwelling Zone as defined in the Zoning Ordinance of the defendant village.
The premises in question are designated as Block 116, Lot 6 on the village tax map and consist of a strip of vacant, unimproved land which was formerly part of the right of way of the Paterson and State Line Traction Company, over which trolley tracks were formerly laid and used. The Traction Company discontinued operation prior to the Zoning Ordinance of 1931 and the premises in question were acquired by prosecutor from the Public Service Coordinated Transport on May 21, 1943. The present applications were filed for permission to extend the non-conforming use of its previously owned property to the premises in question.
The lot comprising the subject matter of the applications before us is roughly in the shape of an inverted ‘L’. It fronts on its easterly end for a distance of 54.50 feet on the west side of Lakeview Drive, which extends southerly from Lake Avenue in Midland Park. The lot then runs in a general westerly direction for approximately 385 feet abutting on its northerly side the present lumber and coal yard of prosecutor. The lot then turns abruptly and runs in a southerly direction about 540 feet at a varying width of about 50 feet at the northerly end to 40 feet at its southerly end. Adjoining this, the longer side of the ‘L’ on the west, is the right of way of the New York, Susquehanna and Western Railroad. On the easterly side it abuts the rear of properties on which are erected single dwellings. Single dwellings are also erected on the southerly boundary of the shorter side of the ‘L’. The locus is thus seen to be an irregularly shaped tract of land with a street frontage of 54.50 feet on Lakeview Drive, located in an area restricted to single dwelling residences.
The Zoning Ordinance of 1931 insofar as it is material to the matter at bar provides, inter alia, as follows:
‘For the purpose of this Ordinance, the Village of Ridgewood is hereby divided into five classes of districts or zones, as follows:
‘Single Dwelling Zones
‘Double Dwelling Zones
‘Apartment Zones
‘Local Business Zones
‘General Business Zones'
‘(b) Future Uses Construction and Changes.
‘No lot hereafter may be used and no building or part thereof hereafter may be erected, constructed, reconstructed, moved, repaired, extended, converted, altered, maintained or used, except in conformity with the provisions of this Ordinance.’
The Zoning Ordinance under review is attacked by the prosecutor on the grounds that the same is unreasonable, unconstitutional and violative of both the State and Federal Constitutions insofar as said Zoning Ordinance attempts to prohibit the use of said lands for the purpose of the storage of lumber, building material and coal. We have carefully reviewed the facts pertinent to the issue and the authorities applicable thereto and conclude that the Zoning Ordinance under review in no wise violates the provisions of R.S.40:55-30, 32, N.J.S.A., which controls the matter before us.
It is urged by the prosecutor that the only effect sought by its application is the extension of its presently existing non-conforming use to the premises in question, and that such extension and enlargement may legally be made since the premises in question abut and adjoin its existing lumber and coal yard. It is further said that the lot in question is not adaptable to any other use except that of business and trade. This contention cannot prevail. We held in DeVito v. Pearsall, 115 N.J.L. 323, 180 A. 202, that although a non-conforming use may be continued, it cannot be enlarged or extended. Citing Conaway v. Atlantic City, 107 N.J.L. 404, 154 A. 6. Mr. Justice Case (now Chief Justice), speaking for the Supreme Court in DeVito v. Pearsall [115 N.J.L. 323, 180 A. 203], said: ‘The care with which the Legislature limited the application of the principle of non-conforming use and the restrictive language with which it authorized restoration and repair are, we think, cogent manifestations of an intent opposite to the wide expansion for which argument is now made.’ We think the foregoing expression particularly apt to the case at bar.
It is said, however, that the application for special exception to the Zoning Ordinance insofar as the use of the premises in question is concerned contemplates a continued user of the tract formerly owned by the Paterson and State Line Traction Company, in itself a non-conforming use. It is urged that such non-conforming use may now be altered so as to permit prosecutor to use the lot for the storage of lumber, building materials and coal. This contention is untenable. The prospective use represents a substantial change from one non-conforming use to another non-conforming use and is condemned by the holding in Berry v. Recorder's Court of West Orange, 124 N.J.L. 385, 11 A.2d 743, Opinion by Mr. Justice Heher. In that case, lands devoted to farming, with the incidental use of horses in furtherance of that purpose, and constituting a non-conforming use were sought to be used for conducting a riding academy or stable including the hiring of saddle horses for use on the adjacent highways and bridle paths. Here, too, we hold that the proposed change from the use of the tract for transportation purposes to one for use as a storage yard is a substantial change that cannot find approbation under our cases. See also, Lane v. Bigelow et al., 135 N.J.L. 195, 50 A.2d 638.
We are asked to set aside the action of the Board of Adjustment in denying prosecutor's application on the ground that the Zoning Ordinance attempts to control the use of vacant land and is, therefore, unconstitutional and...
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