De Vito v. Pearsall

• Decision Date: 22 July 1935
• Docket Number: No. 234.,234.
• Citation: 180 A. 202
• Parties: DE VITO v. PEARSALL, Building Inspector, et al.
• Court: New Jersey Supreme Court

180 A. 202

DE VITO

v. PEARSALL, Building Inspector, et al.

No. 234.

Supreme Court of New Jersey.

July 22, 1935.

Proceeding by Dominick De Vito against the Borough of Rumson and others for a writ of certiorari to review the action of Elmer Pearsall, Building Inspector of the Borough of Rumson, in refusing prosecutor's application for a building permit, and the action of the Board of Adjustment of the Borough of Rumson in refusing his application on appeal.

Writ dismissed.

Argued May term, 1935, before PARKER, CASE, and BODINE, JJ.

Theodore D. Parsons, of Red Bank, for prosecutor.

William A. Stevens, of Red Bank, for defendants.

CASE, Justice.

Prosecutor conducts a nursery business at his property on West street, borough of Rumson. His lot measures 250 feet front by 150 feet deep. On it is a greenhouse 100 feet long, 12 feet wide and 6 feet 4 inches high, used by him in that business. He desires to replace the greenhouse by one that will be 138 feet 8 1/2 inches long, 28 feet 3 inches wide and 12 feet high. His application for a building permit was refused by the borough building inspector, and, on an appeal, by the board of adjustment of the borough. The writ brings up those determinations and also the borough zoning ordinance. The zoning ordinance, adopted August 22, 1929, and amended August 14, 1930, places prosecutor's property in a residence zone wherein a building used for industrial, manufacturing or commercial purposes (with certain irrelevant exceptions) is prohibited. The ordinance further provides that: "No lot hereafter may be used and no building or part thereof hereafter may be erected, constructed, reconstructed, moved, repaired, extended, converted, altered, maintained, or used excepting in conformity with the provisions of this ordinance." Prosecutor's present structure and his business conducted thereat are located contrary to the terms of the ordinance, but they have been in continuous existence since before the passage of the ordinance, and therefore constitute a nonconforming use and may be lawfully maintained. Frank J. Durkin Lumber Co. v. Fitzsimmons, 106 N. J. Law, 183, 147 A. 555. There is no dispute about that.

The question is whether prosecutor, having the right to continue his present structure and to restore or repair it in the event of partial destruction, section 11, c. 274, p. 703, P. L. 1928 (Comp. St. Supp. 1930, § *136—4200J(11), Provident Institution for Savings v. Castles, 168 A. 169, 11 N. J. Misc.'773, is further entitled to replace it with the proposed building. The application to the building inspector rather evasively puts an alternative request for a permit "to erect or alter." The construction is in no true sense an alteration. The desired operation is aptly described by the building inspector as tearing down and building anew. Not only building anew, but on a very much larger scale, for a simple calculation will show that the cubic content of the proposed structure would be approximately six times, and the ground space more than three times, that of the present. It is argued that the entire lot is, and has been, used for the business, and that the prosecutor is protected from interference in that use; but there is no effort toward interrupting any use that has heretofore existed. The ordinance, as now applied, is directed towards the attributes and uses of the building and is within the general purpose of the Zoning Act (chapter 274, P. L. 1928 [Comp. St. Supp. 1930, § *136—4200J(1) et seq.], supra). No use of the grounds, as such, is involved.

Carried to its logical result, the argument made for the prosecutor is that if a nonconforming use is once established on a property, that use may be extended and enlarged to the length and breadth of the entire plot without restraint as to height and depth. We do not understand that to be the law. In Conaway v. Atlantic City, 107 N. J. Law, 404, 154 A. 6, 8, it was said of two ordinances there under review that "The spirit of both ordinances is to restrict any increase of any nonconforming use," and the decision turned upon that view. The statutory authority for nonconforming buildings and their uses already cited (section 11, c. 274, P. L. 1928, p. 703, Comp. St. Supp. 1930, § *136—4200J(11) 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, and any such structure may be restored or repaired in the event of partial destruction thereof." The care...