McGeehan and Eastwood. The opinion of the court was delivered by McGeehan, S.j.a.d.
The plaintiff appeals from a judgment entered in the Superior Court, Law Division, in favor of the defendants, in a proceeding in lieu of prerogative writ brought to review the refusal of the Board of Adjustment of the Town of Montclair to grant special exceptions to the terms of the zoning ordinance.
In November, 1948, plaintiff made an application to the Board of Adjustment, in which he set forth that he owned premises known as No. 91 South Mountain Avenue and petitioned
for a permit "to continue to use the present two story frame and stucco house as a one family residence dwelling, and have a 2' 6" side yard on the northerly side of said property in lieu of 6'; and have a 16' rear yard in lieu of 25'." The Board of Adjustment denied the application on December 9, 1948.
Some history of the property must be set forth. Prior to 1948 the premises now referred to as No. 91 South Mountain Avenue, together with the premises referred to as No. 95 and No. 99 South Mountain Avenue, formed a single lot with a front of 190 feet and a depth of about 230 feet. On this lot there was a large single-family dwelling located approximately in the center of the lot (now on No. 95), a guest house to the south of the main dwelling (now on No. 99), a building containing three garages to the rear of the main dwelling, and a combined barn and carriage house to the north (now on No. 91). This combined barn and carriage house was located close to the rear and north side lines of the lot. This lot was in one ownership from 1924 until sold to the plaintiff on August 2, 1948.
Under the zoning ordinance in effect in 1931, and prior thereto, the property was in a residence "A" zone which was limited to one-family detached dwellings but permitted buildings for accessory use if located on the same lot, and which required that each lot have a rear yard of not less than 25 per cent of the depth of the lot, but not in excess of 25 feet, and two side yards of not less than 6 feet on one side and 8 feet on the other side. The property met the requirements of the zoning ordinance, except that the barn and carriage house had a side yard of only 2 1/2 feet instead of 6 feet and a rear yard of only 16 feet instead of 25 feet. Since the barn and carriage house antedated the zoning ordinance, the structure could continue upon the lot as a nonconforming structure. R.S. 40:55-48.
In 1931 the owner applied for and obtained a building permit which authorized the making of alterations to the barn and carriage house without altering the existing walls. The
application for this building permit stated that the barn was to be used as "Domestic quarters;" the building permit set forth the proposed use as "Servants quarters" and provided: "This Permit is subject to all existing Town ordinances." Use of a building, located on the same lot as the main dwelling, for servants' quarters was permitted as an accessory use under the zoning ordinance. Notwithstanding the restricted accessory purpose for which the conversion was applied for and granted, the converted structure was leased to independent tenants as a one-family dwelling from 1933 on.
In May, 1948, the prior owner made application to the Board of Adjustment for a variance, which was denied. Thereafter, on August 2, 1948, the plaintiff purchased the entire property. He immediately carved up the lot into three separate parcels. He sold the southern parcel and the central parcel to different purchasers and contracted to sell the northern parcel, referred to as No. 91, to still another purchaser. Because of the refusal of the purchaser of No. 91 to take title without a special exception to the zoning ordinance, the plaintiff made his application of November, 1948, to the Board of Adjustment.
The "present two story frame and stucco house" mentioned in plaintiff's application is the former barn and carriage house. The lot on which it now stands, referred to as No. 91 South Mountain Avenue in the application, is in the shape of a reverse "L"; the street frontage forming the top of the "L" is 33 feet, the long side 228.07 feet, the short side 157.82 feet, and the base 131.84 feet. It has an area of less than 11,000 square feet within 200 feet of the street line and a total area of 14,886 square feet. On this lot are two buildings -- one the converted barn and carriage house mentioned above and the other a garage having no side yard to the south. This ...