Walle v. Board of Adjustment of South Brunswick Tp., Middlesex County

• Decision Date: 12 June 1973
• Citation: 124 N.J.Super. 244,306 A.2d 75
• Parties: Frank R. WALLE, Respondent, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF SOUTH BRUNSWICK, MIDDLESEX COUNTY, New Jersey, et al., Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 244

124 N.J.Super. 244

306 A.2d 75

Frank R. WALLE, Respondent, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF SOUTH BRUNSWICK MIDDLESEX COUNTY, New Jersey, et al., Appellants.

Superior Court of New Jersey Appellate Division.

Submitted May 21, 1973.

Decided June 12, 1973.

Andre Wm. Gruber, New Brunswick, for appellants.

Garrenger & Rosta, New Brunswick, for respondent (Joseph J. Rosta, Jr., New Brunswick, on the brief).

Before Judges CARTON, MINTZ and SEIDMAN.

PER CURIAM.

Defendant municipality, its board of adjustment and building inspector appeal from a judgment in favor of plaintiff property owner ordering the issuance of a certificate of occupancy by defendant municipal building inspector.

In 1963 plaintiff sought a variance to restore an existing masonry building for use as an automobile repair shop. Such repair shops were not then and are not now a permitted use in the township's LI--2 (Light Industrial) zone. The variance was granted subject to three conditions, one of which included the requirement that the owner should not permit more than three motor vehicles incapable of operation to be located outside the building.

From 1963 to July 1971 the building was used as a repair shop for foreign cars. On December 14, 1970 plaintiff was found guilty in the municipal court of violating the condition of the variance and was fined $50.

The premises then remained vacant until March 1972. At that time plaintiff applied to the municipal building inspector for a certificate of occupancy for a new tenant who also intended to use the premises as a repair shop. The application was denied for the reason that it was for a nonpermitted use and that a '(p)revious Variance (had) been voided due to violation of the terms of the Variance.'

Plaintiff then instituted this action in lieu of prerogative writs. On defendant's motion and plaintiff's cross-motion for summary judgment the trial court ordered the issuance of the certificate. Hence this appeal.

It is well settled that a variance may be granted subject to conditions. In the present case the resolution granting the variance specifically provided that if the conditions of the variance were violated, 'the applicant shall be deemed to be operating without a variance and shall be subject to the penalties provided for violation of the Zoning Ordinance.' However, the contention that the variance has become forfeited because of the violation must be construed in the light of the rule that a variance partakes, to a large degree, of the characteristics of a vested right in the land. Industrial Lessors, Inc. v. Garfield, 119 N.J.Super. 181, 183, 290 A.2d 737 (App.Div.1972), certif. den. 61 N.J. 160, 293 A.2d 390 (1972).

The situation is essentially similar to that...