Nat'l Lumber Prod.s Co. v. Ponzio

• Decision Date: 07 June 1945
• Docket Number: No. 213.,213.
• Parties: NATIONAL LUMBER PRODUCTS CO. v. PONZIO et al.
• Court: New Jersey Supreme Court

133 N.J.L. 95

42 A.2d 753

NATIONAL LUMBER PRODUCTS CO.

v.PONZIO et al.

No. 213.

Supreme Court of New Jersey.

June 7, 1945.

Proceeding on the application of the National Lumber Products Company against Louis D. Ponzio and others for a variance from the requirements of a zoning ordinance. To review a denial of the Board of Adjustment, the applicant brings certiorari.

Writ denied.

January term, 1945, before BROGAN, C. J., and DONGES and PERSKIE, JJ.

Abraham P. Bab, of Hackensack, for prosecutor.

Walter Jones, of Hackensack, for respondents.

PERSKIE, Justice.

We are concerned, in this zoning case (R.S. 40:55-30 et seq., N.J.S.A.), with the propriety vel non of the denial, by the Board of Adjustment of the Borough of Bogota, of prosecutor's application for a variance from the requirements of the zoning ordinance of the Borough, adopted on March 14, 1929. The variance sought was to permit prosecutor to use a planing machine on its premises (50 Cross Street and 90 Elm Avenue) where, since 1938, it has conducted a retail lumber yard. The premises are located in what is classed under the zoning ordinance as ‘A’ residence zone.

In support of its written application for the stated variance, prosecutor invoked, in substance, the provisions of R.S. 40:55-48, N.J.S.A. (continuation of a nonconforming use), and the provisions of R.S. 40:55-39(c), N.J.S.A. (variance from strict adherence to the ordinance).

On due notice and hearing, the Board of Adjustment of the Borough, on June 9, 1944, unanimously denied prosecutor's application. The prosecutor was allowed a writ of certiorari to review that denial.

Prosecutor's application for the variance, as we have seen, was based upon two theories. They are clearly contradictory and irreconcilable. If the planing machine which prosecutor had in fact installed and used, without permit, were in fact but the continuation of a nonconforming use then prosecutor's application for a variance so that it could continue such nonconforming use was obviously meaningless; it was not necessary. For prosecutor unquestionably had that right both under the statute (R.S. 40:55-48, N.J.S.A.) and under the zoning ordinance of the Borough. Implicit therefore in prosecutor's application for the variance was its acknowledgment that it had no legal right to use the planing machine. Hence prosecutor invoked the statutory relief for such right. R.S. 40:55-39(C), N.J.S.A.

In light, however, of the facts that the record submitted discloses that testimony was fully taken by the respective parties on both theories of prosecutor's application and that both theories are fully argued, we shall consider and determine this case on the merits of the theories adopted and pursued below and here. Lastowski v. Lawnicki, 115 N.J.L. 230, 179 A. 266; Nazarro v. Hudson & Manhattan R. Co., 125 N.J.L. 108, 14 A.2d 521, affirmed 125 N.J.L. 509, 17 A.2d 173.

1. As to continuation of a nonconforming use. The spirit of the zoning act, as reflected by legislative intent and by our adjudications, is to restrict and not to increase any nonconforming use. The nonconforming use must be a continuation of the same use and not some other kind of use. The test is that the nonconforming use must be the same before and after the passage of the zoning ordinance. Burmore v. Smith, 124 N.J.L. 541, and cases collated at pages 546, 547, 12 A.2d 353. Thus each zoning case necessarily stands upon its own facts. Cook v. Board of Adjustment of City of Trenton, 118 N.J.L. 372, 375, 193 A. 191; Bianchi v. Morey, 128 N.J.L. 219, 221, 24 A.2d 566. We turn to what we conceive to be the further pertinent facts.

Prosecutor's predecessors in title conducted a retail lumber yard, as distinguished from a lumber mill, on the premises in question from 1924 to 1935 when the premises were ‘closed down’ because of resultant financial difficulties of the then owner. The premises remained closed until 1938 when they were purchased by prosecutor which thereafter continued the use of said premises as a retail lumber yard. We are told-without denial-that the distinction between the operation of a retail lumber yard and a retail lumber mill is that in the latter (mill) the raw wood is dressed while in the former (yard) it is not. In both, however, lumber is sold in the same condition in which the operator purchased same, i. e., raw and dressed, and in both, each stated class of lumber is cut to meet the required dimensions. Thus in both the same type of equipment is necessary to do the cutting. Giving to the prosecutor the most favorable version of the contradictory proofs as to what equipment had been used in the cutting of the lumber prior to the adoption of the zoning ordinance in 1929, we shall assume that a five horse power motor had been installed and used in the premises to operate a saw of some type. But in February of 1944, prosecutor installed and used, without a permit, a 15 h. p. planer for the dressing of rough lumber. This, we need hardly labor the point, was a substantial increase, and an enlargement of the nonconforming use employed prior to the passage of the zoning ordinance. We perceive nothing in principle which distinguishes the case at bar from the case of Home Fuel Oil Co. v. Glen Rock, 118 N.J.L. 340, 344, 192 A. 516, in which the prohibited proposed increase of storage capacity from about 100,000 gallons of fuel oil to 450,000 gallons was sustained.

(a) We do not share the view that the ‘closing down’ of the premises between 1935 and 1938 constituted, in the circumstances, an ‘abandonment’ or ‘discontinuance’ of the theretofore admitted permissible nonconforming use of the premises. The reason for the closing down and prosecutor's purchase and continued use of the premises as a retail lumber yard, save as to the subsequent increase and enlargement thereof, negatives the contention to the contrary. Cf. Campbell v. Board of Adjustment of Borough of South Plainfield, 118 N.J.L. 116, 191 A. 742.

2. As to variance from strict enforcement of the ordinance on the ground of undue hardship. The ‘essential inquiry’ on an ‘application for a variance’ is whether, in the circumstances exhibited, the denial thereof constitutes an ‘unnecessary and unjust invasion of the fundamental right of property.’ In answering that inquiry the Board of Adjustment exercises a ‘quasi-judicial function’ which is in essence discretionary, controlled by the ‘policy’ of the ‘statute’ and of the ‘ordinance’ consistent therewith. Brandon v. Board of Com'rs of Town of Montclair, 124 N.J.L. 135, 145, 11 A.2d 304, affirmed 125 N.J.L. 367, 15 A.2d 598; Scaduto v. Bloomfield, 127 N.J.L. 1, 20 A.2d 649. The result of power so exercised, carries with it the presumption of ‘fairness and correctness.’ Pieretti v. Johnson, 132 N.J.L. 576, 41 A.2d 896, 897. Unless, therefore, prosecutor has shown that the denial of its application for the variance was ‘clearly against the weight’ of the evidence in favor of the application for the variance, or that the denial was grounded in ‘abuse of discretion’ or was ‘arbitrary and capricious,’ then the denial ‘should stand.’ Green v. Board of Commissioners of Newark, 131 N.J.L. 336, 36 A.2d 610, 611; Pieretti v. Johnson, supra; Saraydar v. Board of Com'rs of City of Newark, 131 N.J.L. 290, 36 A.2d 289. Prosecutor has made no such showing.

Let us briefly consider prosecutor's proofs in support of its alleged claim of undue hardship. It asserts that about 90% of its business consists of war work and that the use of the planing machine is necessary to carry on that work, and...