Ring v. Mayor and Council of Borough of Rutherford

• Decision Date: 05 June 1970
• Citation: 266 A.2d 129,110 N.J.Super. 441
• Parties: Carl E. RING, Plaintiff-Appellant, v. MAYOR AND COUNCIL OF the BOROUGH OF RUTHERFORD, New Jersey, Board of Adjustment of the Borough of Rutherford, New Jersey, and Martin Krajac, Building Inspector of the Borough of Rutherford, New Jersey, Defendants- Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 441

110 N.J.Super. 441

266 A.2d 129

Carl E. RING, Plaintiff-Appellant, v. MAYOR AND COUNCIL OF the BOROUGH OF RUTHERFORD, New Jersey,

Board of Adjustment of the Borough of Rutherford, New

Jersey, and Martin Krajac, Building Inspector of the Borough

of Rutherford, New Jersey, Defendants- Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued April 13, 1970.

Decided June 5, 1970.

William V. Roveto, Union, for appellant (Moser, Roveto & McGough, Union, attorneys; George P. Moser, Jr., Union, on the brief).

M. Harry Muser, Rutherford, for respondents Mayor and Council of Borough of Rutherford.

James S. Ely, Jr., Rutherford, for respondents Board of Adjustment and Martin Krajac, Building Inspector of Borough of Rutherford.

Before Judges GOLDMANN, LEWIS and MATTHEWS.

The opinion of the court was delivered by

LEWIS, J.A.D.

This is an appeal by plaintiff Carl Ring from a judgment of the Law Division, in an In lieu proceeding, wherein the court affirmed the denial of an application for a variance and sustained the constitutionality of the zoning ordinance of defendant Borough of Rutherford.

It is claimed on appeal that (1) the denial of plaintiff's requested variance was arbitrary, capricious and unreasonable, and (2) the residential districts in the borough, as they now exist, are so riddled with nonconforming uses as both to render the denial of his application a deprivation of equal protection of the laws and to invalidate the underlying zoning ordinance.

Plaintiff is the owner of a 2 1/2-story, 12-room frame dwelling at 97 Ridge Road in Rutherford. It was constructed in 1904 or 1905 on a lot with a 100' frontage by a 130' depth. The property is situate in an R--1 residential district which, under the borough zoning ordinance adopted in 1922, is zoned for one-family houses with a minimum lot size of 50 100 .

In October 1968 plaintiff presented to the building inspector plans for the conversion of his house into a two-family dwelling, which apparently could be physically accomplished with minimal interior changes. A building permit was denied, solely for the reason that the property was located in a 'Residence No. 1 District, zoned for one-family houses.' The next month plaintiff applied to the local board of adjustment for a variance recommendation under N.J.S.A. 40:55--39(d) to permit such a conversion and use. Following a hearing thereon his request was denied by unanimous resolution.

The minutes of the board reveal that Ring was the only witness in support of his application. He produced a plot plan of the premises and testified with respect to his proposed changes. He explained the need for income from the property since it was in a state of disrepair and an economic burden, and he referred to nonconforming-use properties in the immediate area. A letter from a nearby resident on Ridge Road, stating that he had no objections to the desired conversion, was received in evidence. Two neighboring property owners appeared in opposition to the application and testified in substance that the granting of such a variance would depreciate property values and would be a neighborhood detriment.

The factual findings of the board are embraced in its resolution of November 12, 1968, which can be summarized thusly: (a) plaintiff's house is located in a prime residential area of the community; (b) the four present nonconforming two-family residences on Ridge Road existed prior to the zoning requirements; (c) to grant the requested variance would substantially impair the zone plan and depreciate property values; (d) no specific reasons for recommending the variance were shown except alleged economic hardship which was insufficient to support the application; (e) the relief requested could not be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the borough zoning ordinance, and (f) a similar request was made by plaintiff in 1964 which was denied for the same reasons.

The Law Division, after reviewing the record of those proceedings, held that the board did not act unreasonably and that its findings and conclusions were 'sufficient as a matter of law to support the denial of the variance.' We note that there was no evidence before the board in serious conflict with its findings.

It is well settled that an applicant is not entitled to a variance in order to effectuate the most profitable use of his property, at least so long as permissible uses are feasible. Koslow v. Municipal Council of Wayne Tp., 52 N.J. 441, 452, 245 A.2d 729 (1968); Bern v. Borough of Fair Lawn, 65 N.J.Super. 435, 450, 168 A.2d 52 (App.Div. 1961). In order to maintain the fidelity of the general zoning scheme, a variant use is permitted only in an exceptional case where the justification is clear. See Grundlehner v. Dangler, 29 N.J. 256, 271, 148 A.2d 806 (1959). Accord, Sitgreaves v. Board of Adjustment of Town of Nutley, 136 N.J.L. 21, 54 A.2d 451 (Sup.Ct. 1947). Furthermore, it is fundamental that a determination of a zoning board is presumptively correct, and the property owner has the burden of proof in establishing a cause for relief. Masterson v. Christopher Diner, Inc., 85 N.J.Super. 267, 273, 204 A.2d 592 (App.Div. 1964), certif. den. 44 N.J. 406, 209 A.2d 142 (1965).

Here, from the evidence before the local agency, it cannot fairly be said that the board's refusal to recommend a variance was unsupported by the record or that its action was in any way unreasonable, capricious or arbitrary. Accordingly, the affirmatory decision of the Law Division, as to this aspect of the case, should remain undisturbed. See Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268, 296--297, 212 A.2d 153 (1965).

We turn now to the broader issue addressed to the constitutional efficacy of the zoning ordinance as presently applicable to plaintiff's property. Preliminarily, we note that the trial judge properly ruled in favor of receiving evidence, Aliunde the record before the board, bearing upon that issue. Plaintiff's suit attacked not only the determination of the board, but also the constitutionality of the underlying zoning ordinance, an issue not raised before the board or within its jurisdiction to resolve. Note generally, Dolan v. DeCapua, 16 N.J. 599, 612--613, 109 A.2d 615 (1954); Wilson v. Borough of Mountainside, 42 N.J. 426, 441--442, 201 A.2d 540 (1964).

The supplemental proofs adduced in the Law Division proceedings included a master plan of the borough approved by the planning board in 1966 which, at the time of the trial, had not been officially adopted by the mayor and borough council. This exhibit, however, was admitted in evidence, with its pertinent land-use maps, to show current physical 'make-up' conditions in the community and 'for statistical purposes only.'

Plaintiff then testified that he had read all of the minutes of the board for the past 20 years and had compiled a list of variances granted during that period. The relevant information thus obtained was incorporated in a 'Request for Admission Pursuant to Rule 4:26--1 (now R. 4:22--1),' which, together with certain 'Corrections' and the 'Answer' of the municipal defendants,...