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Burmore Co. v. Smith

Decided: April 18, 1940.

BURMORE CO. AND WALTHER MATTHEWS, PROSECUTORS-APPELLANTS,
v.
HERBERT C. SMITH, BUILDING INSPECTOR OF OCEAN CITY, NEW JERSEY, BOARD OF ADJUSTMENT OF OCEAN CITY, NEW JERSEY, AND THE CITY OF OCEAN CITY, NEW JERSEY, DEFENDANTS-RESPONDENTS



On appeal from the Supreme Court.

For the appellants, Bleakly, Stockwell, Lewis & Zink.

For the respondents, French B. Loveland.

Perskie

The opinion of the court was delivered by

PERSKIE, J. This is a zoning case. Burmore Co., and its tenant, Walther Matthews, appellants here and prosecutors below, seek to review the judgment of the Supreme Court affirming the judgment of the Board of Adjustment which in turn affirmed the action of the administrative officer (building inspector) who denied the application made by Walther Matthews for a permit to make an addition to his building more particularly hereinafter described.

The facts are stipulated. Burmore Co. is the owner of a lot at the boardwalk between St. James Place and First street, Ocean City, New Jersey. This lot has a boardwalk frontage of 130 feet and a landward depth of 100 feet. It also extends, the full width of 130 feet, oceanward of the boardwalk, 150 feet, more or less, to the high water line. The boardwalk is twenty-four feet wide and bisects this lot, which is designated on the official map of Ocean City as "O.F. 3, Lot 7 K." In the deed to Burmore Co., the land "is described as one lot."

There are two frame structures on this lot. One was constructed by Walther Matthews in 1932 pursuant to a permit granted by the city. The cost of construction, as stated in the permit, was $250. This structure is located 18.7 feet southwesterly from the southwesterly line of St. James Place and is 25.6 feet wide, 24.1 feet deep and sixteen feet high. The second structure was constructed in 1934, also pursuant to a permit granted by the city, by one Virginia Tinkler, another tenant of Burmore Co. The cost of construction, as stated in this permit, was $700. This structure is located at the corner of First street and the boardwalk, and is 16.25 feet wide and 22.5 feet deep. Both structures, since their construction, have been used during the summer months for the sale of bathing paraphernalia, cigars, candy, frankfurters, hamburgers, soft drinks and the like.

The land oceanward of the boardwalk has been and is being used by the public generally as a bathing beach. Additionally, Burmore Co., pursuant to city license, rents same to a tenant who in turn rents out the use of beach chairs and umbrellas thereon.

In this posture as to the use of the property, the city of Ocean City passed a zoning ordinance on March 16th, 1938. By this ordinance appellants' property was placed in the district or zone specified as "Zone 1 -- family residence districts." Thereafter, on April 26th, 1938, Walther Matthews applied to the building inspector for a permit to build an addition (sixteen feet by twenty-four feet) to his existing frame structure to be used chiefly to increase the store space and to provide a bedroom. The building inspector denied the permit. Appellants appealed to the Board of Adjustment which also denied the permit. Both denials were rested upon the premise that to grant the permit would be to extend or enlarge a non-conforming use of the structure.

On certiorari, Mr. Justice Porter, sitting alone, determined that the zoning ordinance was a proper exercise of power and that the action of the Board of Adjustment was neither arbitrary, nor capricious, nor unreasonable. Hence this appeal.

Many and varied are the assaults made upon the zoning ordinance. But few of these assaults, in our opinion, require consideration in this cause.

1. Is the ordinance unreasonable? It is contended that the property in question was not properly zoned for residential purposes because the district was in fact commercial and not residential. Our careful study of the proofs impels the conclusion that there is no substance or merit to this contention. The non-conforming uses in this district ...


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