Scavone v. Mayor and Council of Borough of Totowa

• Decision Date: 28 March 1958
• Docket Number: No. A--43,A--43
• Parties: Angelo SCAVONE and Sadie Scavone, his wife, Plaintiffs-Respondents, v. MAYOR AND COUNCIL OF BOROUGH OF TOTOWA, a municipal corporation, Defendant-Respondent, and James SANDFORD, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 423

49 N.J.Super. 423

140 A.2d 238

Angelo SCAVONE and Sadie Scavone, his wife, Plaintiffs-Respondents, v. MAYOR AND COUNCIL OF BOROUGH OF TOTOWA, a municipal corporation, Defendant-Respondent and James SANDFORD, Defendant-Appellant.

No. A--43.

Superior Court of New Jersey.

Appellate Division.

Argued March 17, 1958.

Decided March 28, 1958.

Howard Stern, Paterson, argued the cause for defendant-appellant (Peter Hofstra, Paterson, attorney).

Albert H. Kreamer, Paterson, argued the cause for plaintiffs-respondents (Kreamer & Kreamer, Paterson, attorneys).

Joseph J. DeLuccia, Paterson, argued the cause for defendant-respondent (Boyle & Boyle, Paterson, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

The issue here may be simply stated. Does the claimant of a right to continue a nonconforming use of property free of a later restrictive zoning ordinance have to show that he began and continued that use in compliance with any and all statutory or municipal regulations governing the conduct of the business constituting that use? Or is it sufficient that the use existed in fact and did not violate the use restrictions of the zoning ordinance in effect when it began?

Plaintiffs, owners of real property in the Borough of Totowa, brought the present proceeding in lieu of prerogative writs to compel the defendant municipality to rescind its issuance to the defendant Sandford of a license to conduct a used motor vehicle business at his property at Browne Avenue and Union Boulevard in the borough named. According to the complaint, the plaintiff Angelo Scavone held a municipal license to conduct such a business on his own property and was actually so engaged when the complaint was filed. The present action was based upon the adoption of an amendment to the zoning ordinance June 21, 1955 prohibiting used-car businesses on vacant land in the area inclusive of Sandford's property. Among other defenses, Sandford claimed a prior nonconforming use commencing June 1, 1953. He had secured a license required under a local ordinance regulating such businesses but failed to apply for a renewal of it at its expiration May 31, 1954. Nevertheless he continued to sell used cars at the premises until June 24, 1955, when he ceased operating the business because of municipal rejection of a new application for a license made June 21, 1955, based by the authorities on the prohibitory zoning amendment adopted that same day. He applied for a license again in November 1955, and it was again rejected. In June 1956 he applied for a limited license to sell used trucks only, and this was granted. The institution of the present action followed.

The trial court held the grant of even the limited license to Sandford violative of the zoning ordinance and also that he had no status for exemption from the ordinance as a prior nonconforming user. The reasoning of the decision was that the use had to be lawful in its inception and to be lawfully continued at all times thereafter; and that these requirements were offended in the failure by Sandford at any time to procure a motor vehicle dealer's license from the State Commissioner of Motor Vehicles, as required by N.J.S.A. 39:10--19, or, after May 31, 1954, to have a license under the local regulatory ordinance.

We are unable to agree with the trial court. The zoning statute was not enacted by the Legislature as a sanction for the enforcement of the multitudinous other statutes and municipal ordinances regulating various kinds of businesses and occupations in the exercise of other phases of the State's police and revenue raising powers. The zoning statute flatly provides: 'Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied * * *.' R.S. 40:55--48, N.J.S.A. What is protected is 'the use in fact existing on the land at the time of the adoption of a new zoning ordinance.' See Ardolino v. Florham Park Board of Adjustment, 24 N.J. 94, 104, 130 A.2d 847, 852 (1957). If the use was then in fact existing it may continue, insofar as the zoning act is concerned, so long as it continues without substantial change or enlargement. Ranney v. Istituto Pontificio Delle Maestre Filippini, 20 N.J. 189, 195, 119 A.2d 142 (1955); Haulenbeek v. Borough of Allenhurst, 136 N.J.L. 557, 57 A.2d 52 (E. & A.1948). We are not here confronted with the question as to whether the protection of a nonconforming use would extend to a use which is a nuisance. See 8 McQuillin, Municipal Corporations (3rd ed. rev. 1957), § 25.181, p. 470.

Plaintiffs and the defendant municipality seek to justify the judgment under appeal by invoking cases which have adverted to the prerequisite that the nonconforming user be 'lawful' at its inception, and it is argued that the operator of a...