Mocco v. Job

Citation56 N.J.Super. 468,153 A.2d 723
Decision Date09 July 1959
Docket NumberNo. A--325,A--325
PartiesLouis MOCCO and Pauline Mocco, his wife, Eugene Dembinski and Gloria Dembinski, his wife, Robert E. Rich, and W. James Hall and Phoebe Hall, his wife, Plaintiffs-Respondents, v. Pasko C. JOB and Ann Mary Job, his wife, the Mayor and Borough Council of the Borough of Allendale, the Board of Adjustment of the Borough of Allendale, and Edwin W. Grosman, Building Inspector of the Borough of Allendale, Defendants-Appellants.
CourtNew Jersey Superior Court – Appellate Division

Ralph W. Chandless, Hackensack, for defendants-appellants (Chandless, Weller & Kramer, Hackensack, attorneys).

Roy J. Grimley, Ridgewood, for plaintiffs-respondents.

Before Judges PRICE, SULLIVAN and FOLEY.

The opinion of the court was delivered by

PRICE, S.J.A.D.

Defendants appeal from a judgment of the Superior Court, Law Division, setting aside a variance which, under N.J.S.A. 40:55--39, subd. d, had been recommended by the Board of Adjustment of Allendale and approved by the mayor and council of that borough.

There is no substantial controversy as to the material facts. They are outlined in detail in an opinion of this court (Heagen v. Borough of Allendale, 42 N.J.Super. 472, 127 A.2d 181 (App.Div.1956)) involving the property which is the subject of the present suit.

Defendants Job have operated a tavern and restaurant on the property in question in the Borough of Allendale for over 30 years. The building on the property owned by defendants Job is a 2 1/2-story building, residential in appearance, located in the one-family residential zone under the borough's zoning ordinance adopted in 1929. As the operation of the business antedated the passage of the ordinance the aforesaid continued use of the property was non-conforming, protected by N.J.S.A. 40:55--48.

It is noted that the premises in question are situated on a 'heavily traveled county road.' On one side of the property is a right of way used for the 'transmission of power.' The opposite side is bounded by a single residential parcel owned and used as a residence by the property owner's mother and father. This latter property separates the premises in question from the adjacent industrial zone, and, under the zoning ordinance, 120 feet of said parcel contiguous to the industrial zone, may be used for parking. The industrial zone abuts the Erie Railroad line. However the properties in the residential zone in question are in the main occupied as one-family dwellings for which the area is zoned as aforesaid. Plaintiffs are property owners within said residential zone.

Prior to 1929 the aforesaid use of the subject property was confined to the first floor and to one room on the second floor measuring approximately 20 30 . This room was used for dining and for meetings. The remainder of the second floor was occupied as living quarters by the owner and his family. In 1952 a fire damaged the premises. Thereafter existing partitions on the second floor were removed and the entire floor was converted to accommodate a kitchen and a dining room, measuring 30 44 . In 1954 a 13.6 29.6 addition to the floor was constructed. Although the use of the second floor was originally limited as aforesaid, in recent years it was expanded to include music and dancing.

In 1954 defendant borough adopted an amendment to its zoning ordinance which created, as set forth in Heagen, supra (42 N.J.Super. 472, 127 A.2d 183) 'in the residential district a small isolated business district,' comprising the premises in question and adjoining premises owned by the mother of the tavern owner. The Heagen suit was then instituted to invalidate the amendment, to enjoin the owners 'from enlarging the nonconforming use,' to compel the 'borough officials to enforce the zoning ordinance' against the owners and for incidental relief therein outlined.

The amendment was condemned as spot zoning and we enjoined the owners 'from using the second floor of the building for dining and meeting purposes, except within the area of 20 30 , above stated, where the dining and meeting room was formerly located.' We further enjoined 'the use of the entire second floor for dancing or music for dancing.' (Heagen, 42 N.J.Super. at page 488, 127 A.2d at page 189)

Defendants then made application to the board of adjustment for a variance to permit the use of the entire second floor, including the above mentioned addition, for dining and dancing. The variance was recommended and the mayor and council subsequently approved such recommendation. Plaintiffs appeared before the board and before the mayor and council to protest the granting of the variance. After approval by the mayor and council this suit was instituted. As above stated, the trial court set aside the variance and defendants appealed. After the appeal had been argued the Supreme Court announced its decision in Grundlehner v. Dangler, 29 N.J. 256, 148 A.2d 806 (1959). Pursuant to the direction of this court counsel submitted supplemental briefs and reargued the appeal to present their respective views as to the application of the Grundlehner decision to the facts of the instant case.

Appellants' main contention is that there was competent evidence to support the action of the local zoning authorities and that the trial court was without authority to set it aside.

N.J.S.A. 40:55--39 provides that:

'The board of adjustment shall have the power to * * *.

d. Recommend In particular cases and for special reasons to the governing body of the municipality the granting of a variance to allow a structure or use in a district restricted against such structure or use * * *.' (Emphasis supplied.)

In Grundlehner, supra, 29 N.J. at page 271, 148 A.2d at page 815, the Supreme Court said:

'The grant of any variance under N.J.S.A. 40:55--39(d) is exceptional relief which must meet not only the negative statutory criteria but also the affirmative statutory requirement of one or more 'special reasons' which must be set forth by the municipal officials in clear and explicit terms and in detail. (Whitehead v. Kearny Zoning Bd. of Adjustment, supra, 51 N.J.Super. (560) at page 570, 144 A.2d (273), at page 278); this requirement is of the utmost importance not only in insuring just and responsible municipal action but also in affording to the court a proper basis for judicial review.'

Guided thereby we consider the findings of the board of adjustment. It recommended the granting of the variance for the following reasons:

'A. Since all Board members are personally familiar with the physical layout of the premises we feel that it will not substantially impair the intent of the zone plan and zoning ordance (ordinance) nor will it be a detriment to the public welfare.

'1. Industrial zone nearby.

'2. Near railroad.

'3. Located on heavily traveled county road.

'4. No objections from immediate property owners.

'5. Air conditioned.

'6. Ample parking area.

'B. The Inn had been in existance (sic) for a long period of time prior to passage of the zoning ordinance.

'1. Absence of dwellings in immediate neighborhood.

'C. The extension of dining and dancing to the second floor should be an asset rather than a detriment to the community.

'1. Patronized by many civil (civic) groups.

'2. Would tend to insure high property values in area if Inn was maintained as first class establishment.

'3. No disturbances on record.

'D. The preponderance of testimony at the public hearings was in favor of this request.

'1. There were no objections from immediate property owners.'

Thereafter at a meeting of the mayor and council of the borough a resolution was passed (by a vote of 4 to 3) which, in part, was as follows:

'Whereas, the Governing Body has duly considered the contents of the minutes of the Board of Adjustment aforesaid and has duly considered the arguments presented at the public hearing of March 14 aforesaid,

'Now, Therefore, Be It Resolved, that the variance sought by Pasco C. Job and recommended by the Board of Adjustment of the Borough of Allendale to permit the use of Crescent Terrace Inn, located at 168 West Crescent Avenue, Allendale, New Jersey as relating to the second floor thereof for the purposes of wining, dining and dancing, be and the same is hereby approved.

'And Be It Further Resolved that it is hereby found that such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the Zoning Ordinance of the Borough of Allendale which said finding is based upon the following facts establishing this application to be a particular case and the following to be special reasons upon which this resolution is predicated:

'1. The applicant's premises are located within several hundred feet of an industrial area so zoned to the south and which as an incident thereof is permitted the parking of motor vehicles around the perimeter upon residential premises.

'2. The location of the railroad and the use thereof in the vicinity of applicant's premises.

'3. The fact that applicant's premises are located upon a heavily traveled county road.

'4. The fact that the service was made upon all interested persons within 200 feet of applicant's premises, none of such interested persons objected to the relief sought and many in fact requested such relief.

'5. That the applicant's premises afford ample off-street parking.

'6. The fact that applicant's premises are reasonably isolated from other residental (residential) uses and the nearest home is that of applicant's mother, who joins with the applicant.

'7. That the facilities of the Inn serve a worthy public use in the community by affording a meeting place for numerous local civic organizations and furnishes the faciltities for desirable social activities such as weddings, testimonials and special gatherings.

'8. The fact that the history of applicant's use of the premises, or his predecessors over...

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    ...arguably applicable to a use variance application grounded upon the particular suitability of the property (Mocco v. Job, 56 N.J.Super. 468, 477, 153 A.2d 723 (App.Div.1959) (insufficient showing that particular site must be the location for the proposed use variance ); compare, Pagano v. Z......
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    ...of his determination for the court in Kohl, and reflecting light on its true meaning, Justice Proctor cited Mocco v. Job, 56 N.J.Super. 468, 477, 153 A.2d 723 (App.Div.1959) and Cunningham, "Control of Land Use in New Jersey by Means of Zoning", 14 Rutgers L.Rev. 37, 93, n. 261 (1959), the ......
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