For the prosecutor, Abraham P. Bab.
For the respondents, Walter Jones.
Before Brogan, Chief Justice, and Justices Donges and Perskie.
The opinion of the court was delivered by
PERSKIE, J. We are concerned in this zoning case (R.S. 40:55-30, et seq.), with the propriety vel non of the denial, by the Board of Adjustment of the Borough of Bogota, of prosecutor's application for a variance from the requirements of the zoning ordinance of the borough, adopted on March 14th, 1929. The variance sought was to permit prosecutor to use a planing machine on its premises (50 Cross Street and 90 Elm Avenue) where, since 1938, it has conducted a retail lumber yard. The premises are located in what is classed under the zoning ordinance as "A" residence zone.
In support of its written application for the stated variance, prosecutor invoked, in substance, the provisions of R.S. 40:55-48 (continuation of a non-conforming use) and the provisions of R.S. 40:55-39(c) (variance from strict adherence to the ordinance).
On due notice and hearing, the Board of Adjustment of the borough, on June 9th, 1944, unanimously denied prosecutor's application. The prosecutor was allowed a writ of certiorari to review that denial.
Prosecutor's application for the variance, as we have seen, was based upon two theories. They are clearly contradictory and irreconcilable. If the planing machine which prosecutor had in fact installed and used, without permit, were in fact but the continuation of a non-conforming use then prosecutor's application for a variance so that it could continue such non-conforming use was obviously meaningless; it was not necessary. For prosecutor unquestionably had that right both under the statute (R.S. 40:55-48) and under the zoning ordinance of the borough. Implicit therefore in prosecutor's application for the variance was its acknowledgment that it had no legal right to use the planing machine. Hence prosecutor invoked the statutory relief for such right. R.S. 40:55-39(c).
In light, however, of the facts that the record submitted
discloses that testimony was fully taken by the respective parties on both theories of prosecutor's application and that both theories are fully argued, we shall consider and determine this case on the merits of the theories adopted and pursued below and here. Lastowski v. Lawnicki, 115 N.J.L. 230; 179 A. 266; Nazarro v. Hudson and Manhattan Railroad Co., 125 N.J.L. 108; 14 A.2d 521; affirmed, 125 N.J.L. 509; 17 A.2d 173.
1. As to continuation of a non-conforming use. The spirit of the Zoning Act, as reflected by legislative intent and by our adjudications, is to restrict and not to increase any non-conforming use. The non-conforming use must be a continuation of the same use and not some other kind of use. The test is that the non-conforming use must be the same before and after the passage of the zoning ordinance. Burmore v. Smith, 124 N.J.L. 541, and cases collated at pp. 546, 547; 12 A.2d 353. Thus each zoning case necessarily stands upon its own facts. Cook v. Board of Adjustment, Trenton, ...