Miller v. Board of Adjustment of Boonton Tp.

• Decision Date: 15 May 1961
• Docket Number: L-14006-58,No. A-470,Docket No. L--14006--58,L-10576-57,Docket No. L--10576--57,A-470
• Citation: 67 N.J.Super. 460,171 A.2d 8
• Parties: A. Leroy MILLER, Plaintiff-Respondent, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF BOONTON et al., Defendants-Respondents, and Dixon Associates, Inc., etc., Defendant-Appellant. (P.W.) DIXON ASSOCIATES, INC., etc., Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF BOONTON et al., Defendants-Respondents, and A. Leroy Miller, Intervenor-Defendant-Respondent. (P.W.) P.W.,P.W.
• Court: New Jersey Superior Court — Appellate Division

Page 460

67 N.J.Super. 460

171 A.2d 8

A. Leroy MILLER, Plaintiff-Respondent, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF BOONTON et al.,

Defendants-Respondents,

and

Dixon Associates, Inc., etc., Defendant-Appellant.

(Docket No. L--10576--57 P.W.)

DIXON ASSOCIATES, INC., etc., Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF BOONTON et al.,

Defendants-Respondents,

and

A. Leroy Miller, Intervenor-Defendant-Respondent.

(Docket No. L--14006--58 P.W.)

No. A-470, L-14006-58 P.W., L-10576-57 P.W.

Superior Court of New Jersey Appellate Division.

Argued Jan. 23, 1961.

Decided May 15, 1961.

William P. Westling, Boonton, for appellant (Slingland, Houman & Bernstein, Pompton Lakes, attorneys; Garret C. Houman, Pompton Lakes, of counsel; William P. Westling on the brief).

Clifford W. Starrett, Morristown, for respondent A. LeRoy Miller (Schenck, Smith & King, Morristown, attorneys).

Before Judges GOLDMANN, FOLEY and DRENK.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Dixon Associates, Inc. ('Dixon') appeals from a judgment of the Law Division affirming the denial by the Boonton Township Board of Adjustment of its application for a variance to build a two-unit bathhouse along the southerly shoreline of Dixon's Pond on land located in an R--1 residential zone.

On May 13, 1958 the board of adjustment recommended to the township governing body that Dixon be granted a variance to build the bathhouse, on condition that its club membership be limited to 50. The township committee formally approved the recommendation on June 3, 1958, and directed the building inspector to issue the necessary building permit. Although Dixon was advised that A. LeRoy Miller, an objector, intended to appeal the decision, it nevertheless proceeded with the construction of the bathhouse. (The structure has since been completed.) Miller brought an action in lieu of prerogative writs (Docket L--10576--57 P.W.) seeking to set aside the variance and to enjoin construction of the bathhouse. The application for a stay was denied, but Dixon agreed that no equities were to run in its favor by reason of the construction.

When the Miller action came on for pretrial hearing it appeared that the record of the proceedings before the board of adjustment and the township committee did not set forth sufficient findings to justify the granting of a variance. Consequently, pursuant to a consent order entered October 21, 1958, the matter was remanded to the board of adjustment for reconsideration and the making of necessary findings after public hearing. The board held hearings on November 12 and December 3, 1958. Of the five members only four participated, one member disqualifying himself.

The board again met on April 14, 1959. Only three members were present. On motion that the requested variance be recommended to the township committee for approval, the vote was 2--1 in favor. However, since less than three members of the board concurred in the decision, the vote, by virtue of R.S. 40:55--41, N.J.S.A., had the effect of resulting in a denial of the variance.

Dixon then instituted an action in lieu of prerogative writs (Docket L--14006--58 P.W.) appealing the denial of the variance. This suit was consolidated with Miller's prior action by a consent order filed August 18, 1959.

The Law Division assignment judge heard the consolidated actions on January 4, 1960, on the basis of the record below, briefs and oral argument. In his oral decision, the trial judge stated that there was a presumption in favor of the validity of the board's decision, even though the majority of those voting favored granting it. The official act of the board, he said, was a denial of the application. Its action could be set aside only upon an affirmative showing of manifest abuse of discretion. It was not sufficient that he, as trial judge, would have reached a different conclusion: it had to be clearly shown that the action of the board was arbitrary, capricious or patently unreasonable. The judge did not think that the proofs went that far; 'we have a situation,' he said, 'where honest men might reasonably differ on the merits of the question presented.' Accordingly, he entered judgment on January 25, 1960 dismissing the Dixon action with prejudice; declaring invalid the recommendation made by the board of adjustment to the township committee on May 13, 1958, as well as the subsequent resolution of the township committee approving the grant of a variance; adjudging the building permit issued to Dixon in accordance with that resolution to be void and of no effect; and ordering Dixon to remove the bathhouse it had constructed on or before March 15, 1960.

Thereafter the Law Division on May 10, 1960 made an order allowing Dixon 45 days to purge itself of contempt by removing the bathhouse, as required by the existing judgment. We entered a consent order staying both the contempt order and the mandatory injunction requiring removal of the bathhouse.

Dixon contends: (1) it was error for the trial court to accord a presumption of validity to the minority vote of the board of adjustment, since the denial of the variance was by operation of the statute rather than by majority vote; (2) the trial court erred in failing to affirm the findings of the majority of the board that the construction of the bathhouse was ancillary and incidental to the valid, nonconforming recreational use of the pond, and (3) the record before the board justified the granting of a variance for 'hardship' or for 'special reasons' under N.J.S.A. 40:55--39(c) or (d), respectively. Dixon has also filed a supplemental brief requesting that (1) in the event the judgment under appeal is reversed, we vacate the contempt order, and (2) in the event of an affirmance, we continue the stay previously granted until Dixon is foreclosed from further appellate remedies.

I.

Dixon Pond was built in 1830 to supply water power for a forge. Sometime thereafter it was used as an ice pond, and icehouses were situated on the approximate site of the bathhouse. The pond and the lands immediately around it have been in the control of members of the Dixon family since at least 1898. As early as that year, the pond and its surrounding area were used by a group known as the Dixon Pond Association (organized in 1898) for recreational purposes--mainly fishing. Originally there were only 20 members, but in the 1930's membership increased to 28. In addition, the Dixon family was allowed 20 members. This system continued from 1898 to 1955 when a new group was organized, the Dixon Pond Club. Title to the property passed from Cyrus Dixon, who died in 1936, to his estate, whose executors leased the premises to the Dixon Pond Club in January 1955. Title eventually went into Dixon Associates, Inc., incorporated about January 1958.

Dixon Associates, Inc., owns some 160 acres of land, including the pond itself. The pond covers approximately 50 acres; Dixon owns about 80 acres on one side of the pond and about 30 on the opposite side. The bathhouse is located on the 30-acre parcel, about 200 feet from the boundary line of Miller's property. Miller owns over 300 acres of land in the area, held for subdivision purposes. He has built 1,000 feet of macadam road and started construction of two homes at a cost of $44,000 and $50,000, respectively. The proposed subdivision is located about 800 feet from the site of the bathhouse.

The township zoning ordinance was adopted September 25, 1956. With respect to the R--1 residence district, article 7 provides that such district is designed for single-family residential use, but permits, among other things, accessory uses customarily incident thereto, provided they do not include any activity conducted for gain, except farming or agriculture. Article 5 deals with nonconforming buildings and uses. It provides that any lawful nonconforming use which existed at the time of the passage of the ordinance may be continued, and any existing building designed, arranged, intended, or devoted to a nonconforming use may be reconstructed or structually altered, subject to certain regulations. In the event there is a cessation of operation of any nonconforming use for a period of 12 consecutive calendar months, the use shall be presumed to be abandoned. Any building destroyed to an extent for exceeding 50% Of its value at the time of destruction may be reconstructed and thereafter used only in conformity with the provisions of the zoning ordinance.

The bulk of the testimony taken before the board of adjustment related to the past uses of the pond. Russell Dixon, vice-president of Dixon Associates, Inc., testified that the Dixon Pond Association had always used the pond 'the same as it is now being used for, namely, fishing, picnicking, recreation, skating and bathing and hunting.' He stated that when the Association was formed there was a building approximately 125 or 150 feet from the present bathhouse, and that it was used primarily as a boathouse. This building was moved to the opposite side of the pond in 1920; it was then used as a boathouse and occasionally to change clothes for bathing. In 1957 it fell into the water and became unsafe. Russell Dixon further testified that there had been two privies, located on either side of the pond. One fell down in the winter of 1957--58 and the other deteriorated to a point where is became unusable. The old icehouse, which stood on the site of the present bathhouse, was torn down in 1950 and nothing remained except a pile of debris until the construction of the bathhouse. Dixon had never seen more than five people using the pond for bathing purposes at one time.

Gladys Stern, whose family had frequented Dixon's Pond as club members for 40 years, testified that the weeds made swimming dangerous and she had seen people swimming in the upper end of the pond only. (The present beach and bathhouse are at the lower end.) She said that members were...