Whitehead v. Zoning Bd. of Adjustment of Town of Kearny, A--293

• Decision Date: 07 August 1958
• Docket Number: No. A--293,A--293
• Citation: 144 A.2d 273,51 N.J.Super. 560
• Parties: Alexander R. WHITEHEAD, Sadie M. Herrington, Mildred L. Fliedner, Joseph Rulli, Alfred Greenhalgh, John Steven, William P. Speirs, Charles Schillon, Mae Meyers, John Kuchmas, Ann Olson, Frederick R. Huneke, William Taylor, Patrick Cassidy, Mary C. Conley, Clara Madonn, Mary W. Turnbull, John H. Mercer, Margaret Thomson, Richard J. Silliman, Joseph Quick, and Charles W. Uhlig, Plaintiffs-Respondents, v. ZONING BOARD OF ADJUSTMENT OF THE TOWN OF KEARNY, New Jersey, and Mayor and Council of the Town of Kearny, New Jersey, Defendants-Respondents, and Tennis Realty Company, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 560

51 N.J.Super. 560

144 A.2d 273

Alexander R. WHITEHEAD, Sadie M. Herrington, Mildred L Fliedner, Joseph Rulli, Alfred Greenhalgh, John Steven William P. Speirs, Charles Schillon, Mae Meyers, John Kuchmas, Ann Olson, Frederick R. Huneke, William Taylor Patrick Cassidy, Mary C. Conley, Clara Madonn, Mary W Turnbull, John H. Mercer, Margaret Thomson, Richard J. Silliman, Joseph Quick, and Charles W. Uhlig, Plaintiffs-Respondents, v. ZONING BOARD OF ADJUSTMENT OF THE TOWN OF KEARNY, New Jersey, and Mayor and Council of the Town of Kearny, New Jersey, Defendants-Respondents, and Tennis Realty Company, Defendant-Appellant.

No. A--293.

Superior Court of New Jersey. Appellate Division.

Argued June 2, 1958.

Decided Aug. 7, 1958.

David A. Rappeport, Bloomfield, for respondents Whitehead and others.

Daniel Leff, Newark, for appellant (Simandl & Leff, Newark, attorneys; Daniel Leff, Newark, of counsel).

Robert J. McCurrie, Newark, filed a statement in lieu of brief for respondents zoning board of adjustment and mayor and council.

Before Judges STANTON, HALL and GAULKIN.

The opinion of the court was delivered by

HALL, J.A.D.

An applicant for a variance under R.S. 40:55--39, subd. d, as amended, N.J.S.A., brings this appeal from a judgment of the Law Division setting aside the variance granted by the council of the Town of Kearny on recommendation of the board of adjustment. The principal question involved is whether the statutory criteria were met, I.e., the existence, affirmatively, of sufficient 'special reasons' and, negatively, of adequate evidence that the relief would be 'without substantial detriment to the public good' and would 'not substantially impair the intent and purpose of the zone plan and zoning ordinance.' The matter was procedurally well handled both at the agency and trial levels, with a properly conducted hearing by the board, findings by that body, a stenographic record of the proceedings and judicial review had upon the record below. See Tomko v. Vissers, 21 N.J. 226, 121 A.2d 502 (1956).

Appellant is a corporation organized to hold the title to the premises in question, which it leases on a long-term basis to Arlington Players Club, a non-profit organization. We shall hereafter refer to both as the 'club.' Plaintiffs are objecting residential property owners in the immediate neighborhood.

The club property comprises a foursided tract, somewhat more than an acre and a half in area. It is located in from the southwesterly corner of Kearny and Washington Avenues and is almost landlocked. The easterly boundary, 264 feet long, abuts three vacant lots owned by the municipality which lie between the boundary and the westerly side of Kearny Avenue. This avenue runs the full length of the town from north to south and constitutes the main business thoroughfare. On the north the club property line, 284 feet long, abuts four rather shallow lots fronting on the south side of Washington Avenue and occupied by homes. On the southerly side, 280 feet in length, are the tracks of the Erie Railroad depressed in a cut. Beyond the cut are the rear lines of numerous residential properties fronting on the north side of Locust Avenue, a street which parallels Washington Avenue. The westerly line of the club is 226 feet long. About three-quarters of it runs along the easterly side line of a residence property which fronts on the southerly side of Washington Place. The remaining northerly quarter represents the only street frontage of the club property, running along the easterly side of Washington Place. This street runs off Washington Avenue to the south for a couple of hundred feet, then west for about the same distance and then returns northerly to the avenue parallel to its first course. It thus encircles a square or green, the northerly side of which fronts on the avenue.

The club has existed at the location to its present extent since about 1921 (prior to the adoption of the first zoning ordinance). On the westerly end of the property, close to and paralleling the tract boundary on this side is a club house, at least 100 feet long and 30 feet wide, containing meeting and club rooms and kitchen and sanitary facilities. East of the club house and occupying the northerly half of the property are five tennis courts; there are two more courts in the southeast corner. The ground between the most westerly of these latter two courts and the club house is an open lawn. The club is a private membership organization, the primary activities of which are tennis and social activities for the enjoyment and recreation of its members, most of whom are residents of Kearny. The club house facilities are rented quite regularly to local civic and social groups and associations, including the Women's Club, Music Club and Girl Scouts for meetings and other functions. The lawn area is used by the individual members from time to time for picnics and informal outdoor games. There is no off-street parking and cars of members, guests and those attending functions must be parked along Washington Avenue and Place.

Under the present zoning ordinance, the club property, except for a few feet on the easterly end, is in the R--1 residence district, the highest grade residence zone in the municipality. The permitted uses therein, with a minimum lot area of 5,000 square feet, are one-family detached dwellings, including incidental professional offices of residents and the taking of not more than five boarders or roomers, municipal recreation buildings, playgrounds and parks, public and parochial schools, public libraries, museums, and art galleries, memorial buildings and churches and related structures. This zone encompasses substantially all the land in the town north of the railroad and west of the business area along kearny Avenue. That street is strip-zoned as a central business district for general commercial and office uses for its entire length to a depth of approximately 100 feet on each side. Included within this strip is a small fraction of the club property, ranging from 11 feet in depth at its southeasterly corner to 48 feet at the northeasterly, now occupied by a part of the two most easterly tennis courts. The residential area on Locust Avenue, across the railroad cut, is in the R--2 residential zone, which permits, in addition to all R--1 district uses, two-family dwellings, private schools (as a special exception) and clubs (such as this one), lodges, and social and community center buildings, 'excepting those a chief activity of which is a service customarily carried on as a business.' Such uses are also permitted in the central business district.

The neighborhood adjacent to the club along Washington Avenue and Place is an established one-family residential area of good quality. It is rather closely built up with dwellings of some age on small lots, there being 37 property owners within 200 feet of the club, and is described as a quiet, shaded section. There is no evidence of breakdown of the zoning regulations or of deterioration of the quality and characteristics of the area.

Admittedly, the club is a non-conforming use and has been since the adoption of the first zoning ordinance. Its application sought a variance to permit the construction of a swimming pool, 75 feet by 30 feet, a wading pool, 30 feet by 20 feet, and a parking area of 16,000 square feet for 50 cars. The pools were to occupy the present lawn area between the two southerly tennis courts and the club house and the parking area was to be constructed on the land now occupied by these two courts, with proposed entrance thereto by means of a driveway, an easement for which it was hoped could be obtained, across the municipally owned lots to Kearny Avenue. The pools would be 85 feet from the property line of the nearest house on Washington Place, 165 feet from that on Washington Avenue and 220 feet from that on Locust Avenue.

The principal reason advanced in support of the variance by evidence and argument before the board of adjustment was that the club was getting in financial difficulties by reason of loss of members (70 out of a total of 180 during the preceding year) and that the installation of the pools, with a proposed membership for that use of 170 families and 30 single individuals, would not only provide recreational facilities of a type in demand, but would assure sufficient revenue to maintain the organization and club house. The benefit to the community from continued availability of the building for meetings and functions of local civic groups was particularly stressed. Proposed methods and rules and regulations for operation of the pools to attempt to control or minimize any annoyance or nuisance to the neighbors, especially from noise and confusion, were submitted. It was manifest that the pools would, during the summer months, bring to the property daily a considerably larger number of people, including children, than now come to play tennis and engage in other activities on the grounds. This was recognized not only in the provision for the off-street parking lot, but in showing by a diagram on the plan accompanying the application that 36 more cars could be parked along the three sides of Washington Place. The proposed manner of operation of the pools, including a canvas enclosure, also gave tacit cognizance to the well-known fact that a swimming pool utilized by sizeable numbers of adults and children in hot weather is necessarily going to produce more noise than seven tennis courts. Vehement objections to the variance were expressed by neighbors on...