Stout v. Mitschele
| Decision Date | 11 April 1947 |
| Docket Number | No. 246.,246. |
| Citation | 135 N.J.L. 406,52 A.2d 422 |
| Parties | STOUT et al. v. MITSCHELE et al. |
| Court | New Jersey Supreme Court |
Certiorari proceeding by Presley D. Stout and others against Herbert J. Mitschele and Mary A. Mitschele, his wife, the Township of Livingston, a municipal corporation, and the Board of Adjustment of the Town of Livingston, to review the action taken by the board in recommending that a permit be issued to Herbert J. Mitschele to build a horse barn on premises located in a residence A zone of the township.
Writ dismissed.
Syllabus by the Court.
1. Property in a township used for farming before the adoption of a zoning ordinance is a non conforming use, which may be continued as such even though the farm be placed in A residence zone.
2. There is no power to regulate the kind of farming to be conducted, except in the interest of the public health.
January term, 1947, before BODINE and WACHENFELD, JJ.
Grosso & Grosso and Robert E. Beck, all of Orange, for prosecutors.
Alexander Waugh, of Newark, for respondents Herbert J. Mitschele and Mary A. Mitschele.
Edward Gaulkin, of Newark, for Livingston Tp.
The writ in this case brings up for review the action taken by the Board of Adjustment of the Township of Livingston on August 5, 1946, and the approval by the Township Committee of the recommendation of the Board that a permit be issued to Herbert J. Mitschele to build a 40-stall, two story horse barn on premises located in the residence A zone of the Township.
The premises in question do not abut and are more than 150 feet beyond the boundary line of any district in which the structure or use is authorized by the zoning ordinance.
The permit was sought by way of a variance to the zoning ordinance.
The property in question consists of a 9 acre tract fronting east on Mount Pleasant Avenue and a rear parcel of 14 acres reached by means of a right of way.
The zoning ordinance in effect in 1931 permitted farming, dairying and truck gardening in a residence A zone. By amendment adopted September 21, 1936, farming, dairying and truck gardening were permitted in a residence A zone ‘provided, however, that every building or plant for the treatment, pasteurization or bottling of milk and every barn or stable for the accommodation of more than five horses and more than five cows shall be at least 300 feet distant from every street or adjoining property line and at least 500 feet distant from any existing dwelling house.’
In 1931 and until 1943 the premises were used for dairy purposes, the owner frequently having 50 cows and producing as much as 600 quarts of milk per day. The set back of the Mitschele buildings was violative of this ordinance and allowable only because it was a non conforming use.
By further amendment a new paragraph 9 was added in 1942, which provided as to A zone residences as follows: ‘For the raising or keeping of livestock, domestic animals, poultry, domestic or ornamental fowl, for the use of the occupant of the premises and his family provided that such use is not carried on as a business, and that the said livestock, domestic animals, poultry are kept in a wholly enclosed area and provided further that any structure utilized for such purpose be located in the rear yard, and that every part thereof and its appurtenances are distant at least fifty feet from any dwelling house or building used for human habitation.’
In 1943, the Mitscheles discontinued the retail milk...
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Farmegg Products, Inc. v. Humboldt County, 54287
...174 N.E. 476 (1,000-bird chicken house plus 125 apple trees and five or six acres of vegetables--held a 'farm'). But cf. Stout v. Mitschele, 135 N.J.L. 406, 52 A.2d 422 (dairying discontinued and horse raising begun--held 'farming'); De Benedetti v. River Vale Township, 21 N.J.Super. 430, 9......
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Heagen v. Borough of Allendale
...N.J.L. 195, 50 A.2d 638 (E. & A.1947)--from an auto service station to a modern drive-in auto service station; Stout v. Mitschele, 135 N.J.L. 406, 52 A.2d 422 (Sup.Ct.1947)--from a dairy farm to the raising of Kramer v. Town of Montclair, 33 N.J.Super. 16, 18, 109 A.2d 292 (App.Div.1954)--f......
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Aetna Cas. & Sur. Co. v. Brethren Mut. Ins. Co.
...dairy business upon the premises changed the use of the premises to horse raising. The Supreme Court of New Jersey in Stout v. Mitschele, 135 N.J.L. 406, 52 A.2d 422 (1947), held that there was no violation of the zoning ordinance, as the owner's activities still constituted farming. The Co......
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Borough of Demarest v. Heck
...of horses 'is a form of farming and was incidental to such occupation from the earliest times' (citing Stout v. Mitschele, 135 N.J.L. 406, 409, 52 A.2d 422, 424 (Sup.Ct.1947)), and that the use of defendants' property is a continuance of a nonconforming use which 'existed prior to the adopt......