State v. P. T. & L. Const. Co., Inc.

• Decision Date: 12 June 1978
• Parties: STATE of New Jersey (Borough of Paramus), Complainant-Respondent, v. P. T. & L. CONSTRUCTION COMPANY, INCORPORATED, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 20

77 N.J. 20

389 A.2d 448

STATE of New Jersey (Borough of Paramus), Complainant-Respondent, v. P. T. & L. CONSTRUCTION COMPANY, INCORPORATED, Defendant-Appellant.

Supreme Court of New Jersey.

Argued March 8, 1978.

Decided June 12, 1978.

Linda A. Palazzolo, Chatham, for defendant-appellant (McElroy, Connell, Foley & Geiser, Newark, attorneys).

Paul Dykstra, Hackensack, for complainant-respondent (McCann & Hynes, Ridgefield Park, attorneys; Edward H. Hynes, Ridgefield Park, on the brief).

The opinion of the court was delivered by

CONFORD, P. J. A. D. (temporarily assigned).

This appeal is before the Court on direct certification to the Superior Court, Law Division, ¹ 75 N.J. 584, 384 A.2d 815 (1977). The primary question for determination is whether use of vacant land as a helistop should be deemed a valid accessory use to property occupied as the headquarters of a construction company and used also for storage of its heavy equipment, within the meaning of a zoning ordinance permitting accessory uses "if customarily incident to a permitted use." Aside from the matter of the helistop use, the general use to which the property was being put was concededly permitted in the Limited Industrial Zone where located.

Defendant corporation was convicted in the Paramus Municipal Court on a charge of violation of the zoning ordinance "by committing the following offense(s): Art. 14A Block 5202, Lot 7 Heliport prohibited." On appeal to the Bergen County Court, that tribunal held defendant's operation on the property of a helistop was permissible as an accessory use but that defendant was nevertheless in violation of the ordinance because it had not first secured site plan approval, a building permit and a certificate of occupancy for the heliport use. It was fined $100 and $10 costs. Defendant appealed to the Appellate Division from the conviction; the borough cross-appealed from the part of the ruling holding the heliport use a valid accessory use. ²

The operative facts here involved are essentially undisputed. Defendant (P. T. & L.) is a construction company which maintains offices and a machinery storage area on property it has owned in the Borough of Paramus for 25 years. The property is located in a Limited Industrial Zone with the nearest residential area over 1000 feet away. The population of Paramus is approximately 30,000, and the borough is a part of a metropolitan area which is heavily built-up and densely populated.

P. T. & L. primarily handles road building projects. It does business in New York, New Jersey, Connecticut and other eastern states. Two or three times a week P. T. & L's executives travel to various locations to survey new construction projects and to supervise ongoing ones. Driving to and from these sites takes from 3 to 31/2 hours each way. To reduce the time, P. T. & L. purchased two helicopters and established a helistop on its property. It was placed on a dirt covered area 100 feet from the edge of the motor vehicle parking lot. This use has not restricted other uses of the 3-acre lot. The only physical change in the helistop area was the laying of gravel thereon. This was done to lessen the dust from landings and take-offs.

On June 3, 1974, P. T. & L. applied to the Division of Aeronautics of the New Jersey Department of Transportation for a helistop license. See N.J.S.A. 6:1-20 Et seq. On June 18, 1975 the Chief of the Bureau of Inspection & Aircraft Operation of the Division of Aeronautics wrote to the Mayor of Paramus, advising him of the application and stating that the Bureau had inspected the proposed site and found that it met the physical requirements for licensing as a Private Use Helistop. The mayor was invited to forward his objections and comments or a request for a public hearing by July 2, 1975, the date scheduled for the processing of P. T. & L.'s application. Thereafter the borough asked P. T. & L. for a site plan of the proposed location and the latter complied, although stating at the same time that the information sought on the application form did not appear relevant to a helistop which did not entail any construction. About six months passed with no action by the planning board or the State bureau, whereupon a summons was issued by the borough to P. T. & L. following the landing of a helicopter on the property in February 1976.

I

We first consider the borough's complaint against the county court's finding that the heliport was a valid accessory use. The pertinent sections of the zoning ordinance are as follows.

19-BIL-200: PERMITTED USES LIMITED INDUSTRIAL ZONE

Within any BIL zone, no building, structure or area or lot or land, shall be used in whole or in part for other than one or more of the permitted uses expressly set forth herein, or the special exception uses expressly set forth herein, or the accessory uses accessory and subordinate to the permitted uses and exception uses expressly set forth herein.

All uses not expressly permitted by this ordinance in the BIL zone district are prohibited.

19-BIL-200-150: ACCESSORY USES

An accessory use shall be permitted provided:

a) The use is customarily incident to a permitted use; and

b) Subordinate to the main permitted use; and

c) Not in violation of the provisions set forth hereafter.

The following accessory uses are permitted:

1. Storage of materials and supplies provided the same are within an enclosed building; and

2. Truck loading spaces as required by the provisions of this ordinance; and

3. Business signs and real estate signs provided the same comply with all ordinances pertaining thereto; and

4. Quarters for the accommodation of firemen and watchmen whose presence on the premises is required continuously during hours when the premises are not open; and

5. Private garage or parking area; and

6. Underground parking; and

7. Any required planting area or required planted buffer area; and

8. Planted area; and

9. Sidewalks; and

10. Driveways; and

11. Accessory parking garages or accessory parking structures provided that such accessory parking garages or accessory parking structures do not cover more than 25% Of the total area of the parking lot. This coverage is in addition to the coverage of the lot permitted for the main building or buildings.

5-D: DEFINITIONS

5-D-3. ACCESSORY BUILDING OR USE: A building or use that is:

a. On the same lot as and

b. Subordinate to, and

c. Under the same ownership or control as and

d. Used for the purposes customarily incidental to the use of the main building.

5-B: Relation of Zoning Ordinance to other provisions of law.

5-B-10: Wherever the regulations, restrictions and provisions of this Ordinance are greater or more extensive than those required or imposed by any other statute, regulation, ordinance or private deed restriction, the terms of this Ordinance shall govern.

19-BIL-200-175: PROHIBITED USES

All uses not expressly permitted by this ordinance in the BIL zone district are prohibited.

Helistop or heliport uses are nowhere expressly alluded to in the ordinance. The municipality stresses the provision that all uses not expressly permitted in the limited industrial zone are prohibited and contends that the list of accessory uses specified in Section 19 BIL-200-150 is exclusive. P. T. & L. argues that the express allowance in that section of accessory uses where customarily incident to a permitted use and subordinate to the main permitted use is intended to extend beyond the eleven specific accessory uses enumerated thereafter. We are impressed by P. T. & L.'s contention that under the borough's proposed construction of the ordinance the introductory proviso alluding to "customarily incident" accessory uses would be meaningless as mere surplusage. Compare Bass v. Allen Home Improvements Co., 8 N.J. 219, 224, 84 A.2d 720 (1951). The argument goes on to aver that the itemization of specific accessory uses was intended only to provide examples of valid accessory uses for ease of administration of the ordinance. This is persuasive. Otherwise any number of other uses, unquestionably incident to the main use as a matter of custom or convenience, would automatically be disqualified. See Skinner v. Zoning Board of Adjustment of Cherry Hill, 80 N.J.Super. 380, 386, 193 A.2d 861 (App.Div.1963).

Concluding, therefore, that the ordinance permits accessory uses which are customarily incident to a permitted use and subordinate to the main permitted use, so long as not violative of any other affirmative requirement, we address the question whether the helistop use here implicated meets such specifications.

In analyzing whether a use is customarily incident to the permitted use, two determinations must be made. The first is whether the use is Incidental to the main use: does the use " * * * bear a close resemblance and obvious relation to the main use to which the premises are put"? Honigfeld v. Byrnes, 14 N.J. 600, 606, 103 A.2d 598, 601 (1954); see Booth v. Bd. of Adjust. of Rockaway Twp., 50 N.J. 302, 234 A.2d 681 (1967); United Advertising Corp. v. Metuchen, 42 N.J. 1, 198 A.2d 447 (1964); Dolan v. DeCapua, 13 N.J.Super. 500, 80 A.2d 655 (Law Div.1951); DeBenedetti v. Twp. of River Vale, 21 N.J.Super. 430, 91 A.2d 353 (App.Div.1952); Keller v. Westfield, 39 N.J.Super. 430, 121 A.2d 419 (App.Div.1956). Second, it must be determined whether a use which is found to be incident to the permitted use is also a customary use. See Newark v. Daly, 85 N.J.Super. 555, 205 A.2d 459 (App.Div.1964), aff'd 46 N.J. 48, 214 A.2d 410 (1965). Generally, a use which is so necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it will be found to be a customary use. Chatham v. Donaldson, 69 N.J.Super. 277, 282, 174 A.2d 213 (App.Div.1961); Northvale v. Blundo, 85 N.J.Super. 56, 60, 203 A.2d 721 (App.Div.1964); see Wright v. Vogt, 7 N.J. 1, 80 A.2d 108 (1951). The fact that a use is not customarily indulged in, however, is not...