On appeal from Municipal Court of Montclair.
This is an appeal de novo from a conviction in the Montclair Municipal Court for the violation of a zoning ordinance; to wit, the maintenance of a multi-family dwelling in a single-family residence zone.
The case has been submitted on an agreed state of facts wherein the use of the premises as a multi-family dwelling is admitted as is its location within a single-family residence zone.
There are two questions involved in this appeal: (1) whether, under the facts of this case, there has been an abandonment of the valid nonconforming use that existed at the time of the adoption of the first zoning ordinance in Montclair in 1921; and (2) the validity of the zoning ordinance in its application to defendant's premises.
The agreed state of facts shows that the first Montclair zoning ordinance, adopted May 19, 1921, placed the premises in question, No. 137 Bellevue Avenue, Montclair, New Jersey, in a single-family residence zone. The dwelling since that time has remained in a single-family residence zone.
The said premises had been constructed many years prior to 1920, and were occupied and used as a multi-family dwelling by three separate families prior to 1922.
Defendant's predecessor in title, a Mr. Reynolds, acquired the house in 1922, and requiring the use of it for himself, his wife and four children, made a number of alterations in the premises to make it suitable for one-family use. He removed the bathroom fixtures from the first floor; removed the kitchen fixtures from the second floor; and installed a bathroom on the third floor.
Reynolds and his family occupied the house from 1922 to July, 1949, when he conveyed the premises to the defendant. During that period, as his children grew up and went away to college, the third floor was occupied by various persons at various times, never exceeding three in number at any one time. Such persons had the use of other rooms in the house, such as the first floor living room, the porch and the second
floor library, and had their table board with the Reynolds family.
Defendant acquired the premises in July, 1949, and thereafter re-installed the kitchen fixtures on the second floor and an electric hot plate on the third floor. The house is presently occupied by three families (including defendant), each having his or her own cooking facilities.
It will be unnecessary for the purposes of this appeal to consider the constitutional validity of zoning ordinances (insofar as they sought to divide a municipality into districts for various uses) prior to the 1928 zoning amendment to the 1844 Constitution; for a valid nonconforming use under the stipulated ...