State v. Casper.

• Decision Date: 04 October 1949
• Docket Number: No. A-130.,A-130.
• Citation: 68 A.2d 545
• Parties: STATE v. CASPER.
• Court: New Jersey Superior Court

68 A.2d 545

STATE

v.CASPER.

No. A-130.

Superior Court of New Jersey, Appellate Division.

Argued Aug. 23, 1949.

Decided Oct. 4, 1949.

Ann Casper was convicted of violating a zoning ordinance of the city of Long Branch for permitting the use of a house as an apartment house in violation of zoning ordinance, and she appealed.

The Superior Court, Appellate Division, McLean, J.A.D., affirmed the conviction, holding that the facts failed to establish a non-conforming use which would warrant the use of the house as an apartment house.

Bigelow, J.A.D., dissented.

Before Judges BIGELOW, McLEAN and ROGERS.

Parsons, Labrecque, Canzona & Combs, Red Bank, Edmund J. Canzona, Red Bank, for plaintiff-respondent.

Ward Kremer, Asbury Park, for defendant-appellant.

The opinion of the court was delivered by

McLEAN, J.A.D.

This appeal brings up for review the conviction of the defendant-appellant for violation of the zoning ordinance of city of Long Branch, in that she permitted the use of a single detached house located at 936 Ocean Avenue for more than one family and the renting of various portions of the said house to various persons, contrary to and in violation of the 4th section of said ordinance passed March 3, 1931, and the several amendments thereto and supplements thereof.

The defendant sets up as the first ground for reversal that three years prior to the zoning ordinance and continuously thereafter the then owners used the property for what is customarily known as a rooming house; that such use was a nonconfirming use under the statute, R.S.1937, 40:55-48, N.J.S.A., which she as the successor in title could continue.

These are the facts. Prior to 1948 the premises were occupied as a private one family residence; they were then acquired by James C. Gaffney and his partner Bernard Lepinsky with the idea of erecting an apartment house. Confronted with adverse economic conditions of the depression period they abandoned the idea of the apartment house and ‘to get some money out of it to pay the taxes' the house was furnished and according to Lepinsky they ‘started in renting rooms.’ There were ‘around twenty-six rooms, * * * but only about twenty-two rented rooms because the other rooms was like living room and sitting room and kitchen, all those things.’ Gaffney acquired Lepinsky's interest and continued the business under his personal supervision until he died in December, 1943. Salesmen had rooms there; a sign appeared on the premises inviting roomers; for a time meals were served. Gaffney's daughter testified that she was a ‘paying guest’ and that there were others; that when Gaffney died the executors of his estate ‘asked the people to vacate and then they closed it up’ and it remained closed until sold in December, 1947. Defendant-appellant, when asked what use she is making of the premises, testified, ‘Well, there is three apartments there that I have rented out.’

These facts fail to establish the non-conforming use here claimed. It is now no longer open to question that the spirit underlying the Zoning Act, R.S. 40:55-30 et seq., N.J.S.A., is to restrict rather than to increase any non-conforming use under section 48. The non-conforming use must be a continuance of the same use made of the property at the time of the passage of the ordinance; it must have been lawful when instituted and actively and constantly maintained. Lane v. Bigelow, 135 N.J.L. 195, 50 A.2d 638; Durkin Lumber Co. v. Fitzsimmons, 106 N.J.L. 183, 147 A. 555.

In this case the use of the property as a rooming house was not actively maintained; it did not continue after December 1943, when Gaffney died. Gaffney's daughter testified, and it is corroborated by Lepinsky, that when Gaffney died the people were asked to leave, the house was closed and remained closed for a period of upwards of four years. There is no evidence that any effort was made to continue the business or to find a tenant as in Campbell v. South Plainfield, 118 N.J.L. 116, 191 A. 742 or Haulenbeek v. Allenhurst, 136 N.J.L. 557, 57 A.2d 52. Nor does it appear that it was sold as a rooming house as in Eilenberg v. Taggart, 119 N.J.L. 61, 194 A. 447. The present use is different from the use made of the property by Gaffney. He entertained roomers and paying guests: Mrs. Casper has three apartments there which she has rented out. Such a change or enlargement of the use is fatal to its continuance. National Lumber Products Co. v. Ponzio, 133 N.J.L. 95, 96, 42 A.2d 753; Lane v. Bigelow, supra.

We find no merit in the suggestion that the inactivity at the property from 1943 to December 1947 was excusable because of or incident to the settlement of Gaffney's estate. Members of his family were acting as his executors; they must have been familiar...