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Devito v. Pearsall

Decided: July 22, 1935.

DOMINICK DEVITO, PROSECUTOR,
v.
ELMER PEARSALL, BUILDING INSPECTOR OF THE BOROUGH OF RUMSON, BOARD OF ADJUSTMENT OF THE BOROUGH OF RUMSON AND THE BOROUGH OF RUMSON, DEFENDANTS



On certiorari.

For the prosecutor, Theodore D. Parsons.

For the defendants, William A. Stevens.

Before Justices Parker, Case and Bodine.

Case

The opinion of the court was delivered by

CASE, J. Prosecutor conducts a nursery business at his property on West street, borough of Rumson. His lot

measures two hundred and fifty feet front by one hundred and fifty feet deep. On it is a greenhouse one hundred feet long, twelve feet wide and six feet four inches high, used by him in that business. He desires to replace the greenhouse by one that will be one hundred and thirty-eight feet eight and one-half inches long, twenty-eight feet three inches wide and twelve 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 22d, 1929, and amended August 14th, 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.L. 183. 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 (Pamph. L. 1928, ch. 274, ยง 11; Provident Institution for Savings v. Castles, 11 N.J. Mis. R. 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 ...


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