State v. Wagner

• Decision Date: 07 November 1963
• Docket Number: No. 835,835
• Parties: STATE of New Jersey v. Vincent S. WAGNER, Defendant-Appellant.
• Court: New Jersey County Court

Page 206

81 N.J.Super. 206

195 A.2d 224

STATE of New Jersey v. Vincent S. WAGNER, Defendant-Appellant.

No. 835.

Mercer County Court Law Division, New Jersey.

Nov. 7, 1963.

Philip B. Papier, Jr., Trenton, for the State.

Abbotts & Abbotts, Trenton, for defendant-appellant (William Abbotts, Trenton, appearing).

BARLOW, J.C.C.

This is an appeal from the judgment of the Municipal Court of the Township of Ewing, in which defendant Vincent S. Wagner was found guilty of a violation of the Township Zoning Ordinance.

On June 1, 1960 defendant purchased a residential property known as 1905 Pennington Road, Ewing Township, Mercer County, New Jersey. The property consists of a large house which had previously been converted into two apartments. Prior to defendant's purchase of the home, and for some time prior to 1950, the then owner of the property had lived in one side or one apartment of the house and leased the other unit to another family. Apparently, at least one of the families to which the second unit was rented had, from time to time, sublet part of the premises to one or more persons.

After defendant purchased the property he rented one apartment to his son-in-law and daughter, and the other unit to a group of 12 girls who were college students at nearby Trenton State Teachers College, for the school year 1962--1963. An oral lease was made with each of the student tenants, providing for a weekly or monthly rental for the period constituting the school year.

Both units, or apartments, provide complete living quarters, both containing separate kitchens and bathrooms.

Effective September 8, 1950, Ewing Township adopted a comprehensive zoning ordinance, which thereafter was supplemented and amended from time to time.

The premises here in question are situate within a 'Residence 'A-1' District,' in which the ordinance prohibits structures other than

'* * * 1. A single family dwelling and its customary accessory buildings and uses. 2. A church, public school and a public park or playground. 3. Other buildings, structures and uses as provided by paragraphs (a), * * * of Section 11.'

Section 11, referred to above, is entitled 'Exceptions and Special Provisions,' and subsection (a) provides as follows:

'Special Uses Permitted. After public notice and hearing * * *, the Board of Adjustment as hereinafter created may authorize the issuance of a permit for any of the following buildings and uses: 1. * * * (6) A rooming or boarding house. * * *'

A 'rooming or boarding house' is defined under section 3 of the zoning ordinance as 'A dwelling other than a hotel, wherein more than three people are sheltered or fed for profit.' A 'hotel' is defined as 'a public inn, in which there are more than 6 sleeping rooms, without provision for cooking in any individual room or suite.'

By reason of his rental of part of the premises to the 12 young ladies, defendant was found guilty in municipal court of violating the township zoning ordinance in that he was maintaining a boarding house without having first obtained the necessary permit therefor from the board of adjustment, as required by section 11.

It is conceded that on September 8, 1950, when the ordinance was adopted, and thereafter, the use of the premises by defendant's predecessors in title was a nonconforming use, which, it is agreed, would not be affected by the passage of the ordinance so long as the use was not changed or extended beyond the limits prescribed by the ordinance itself. In this connection, the ordinance provides as follows:

'(j) Non-Conforming Uses.

1. Continuation Thereof:

All buildings, structures and the uses not conforming to the regulations of the district in which they are located, at the time of this enactment, shall be known and regarded as 'non-conforming'.

A non-conforming building or use may be continued and may be changed to another non-conforming use of the same or a more restricted classification, but no additions or extensions of such building or use shall be made, exceeding: (1) 25 percent of the occupied floor area; or (2) 25 percent of the cubical contents of the building or buildings as existing at the time of this enactment; or (3) 25 percent of the service capacity of a use conducted all or partially in the open; and provided further, that subsequent to such extension or addition to a non-conforming building or use, there shall be no further additions or extensions except in accordance with the regulations of the district in which such building or use is located.'

Whatever the language of the ordinance, it is clear that nonconforming uses may be continued as of right, although they may not be enlarged or extended as a matter of right. Grundlehner v. Dangler, 29 N.J. 256, 263, 148 A.2d 806 (1959); R.S. 40:55--48, N.J.S.A. It is, however, the intent of the law that the extension of nonconforming uses be restricted. Gross v. Allen, 37 N.J.Super. 262, 272, 117 A.2d 275 (App.Div.1955). In order to retain the protection of the...