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Gerkin v. Village of Ridgewood

Decided: January 31, 1952.

EDWARD O. GERKIN, ET AL., PLAINTIFFS-APPELLANTS,
v.
VILLAGE OF RIDGEWOOD, A MUNICIPAL CORPORATION OF THE COUNTY OF BERGEN AND STATE OF NEW JERSEY, ET AL., DEFENDANTS-RESPONDENTS



Jacobs, Eastwood and Bigelow. The opinion of the court was delivered by Jacobs, S.j.a.d.

Jacobs

This is an appeal from a judgment entered in the Law Division sustaining the grant of a variance under R.S. 40:55-39(d), to the Upper Ridgewood Tennis Club, from the terms of the zoning ordinance of Ridgewood.

The Upper Ridgewood Tennis Club is a nonprofit corporation, organized in 1914, and the owner of land at Morning-side and Bedford Roads, Ridgewood, on which seven tennis courts have been constructed. The surrounding area is admittedly residential consisting almost exclusively of substantial one-family residences. Prior to 1946 buildings for membership club purposes were permitted in the area; however,

none was built and the Upper Ridgewood Tennis Club conducted its premises largely as neighborhood tennis courts without any pertinent building. Under the zoning ordinance adopted on April 23, 1946, the area is within the one-family zone where buildings for membership club purposes are not permitted; such buildings may, however, be erected within the multi-family zone. The validity of the zoning ordinance is not attacked in these proceedings; under its terms the Upper Ridgewood Tennis Club may not erect any buildings for membership club purposes although it may continue its pre-existing operation of its tennis courts as a nonconforming use. R.S. 40:55-48.

In 1945 the tennis club had 80 members; in 1946 its membership increased to 196, and by 1950 it had increased to 361 including 50 who were not residents of Ridgewood. The club's activities likewise had increased and now include regular league tournaments during which visiting tennis teams compete with its team. Apart from the tennis courts and equipment there are no significant facilities at the club. In 1950 the club sought a permit to erect a $14,000 cinder block and frame building on its land but its application was denied; thereafter it appealed to the board of adjustment seeking a variance from the terms of the zoning ordinance and alleging undue hardship in that (a) the building "is necessary for the use and operation" of its property and (b) its property is not suitable for strictly residential use "without great loss and damage." The building as proposed by the club would include in its basement an equipment room and a men's shower and locker room, and on its ground floor a ladies' locker and shower room, an office, a supply room, and a caretaker's suite including kitchen, combined bedroom and living room, and lavatory.

In June, 1950, a hearing was held before the board of adjustment during which witnesses testified on the club's behalf and other witnesses, mainly neighboring residents, testified in opposition. These residents referred to the parking, noise, and other disturbances incident to increased

activity at the club and complained that the use of the premises was being changed substantially; they pointed out that although, unlike an earlier application by the club, no provision was being made for entertainment it would be impossible to restrain general social activity within and about the facilities afforded by the proposed building. It was not disputed that the club premises could readily be used for residential purposes within the terms of the ordinance, although that would involve loss of the club's investment in the tennis courts. Similarly, it clearly appeared that if the club's activities had not increased since the 1946 ordinance the need for extensive new facilities would not have arisen. However, the club took the position that in view of its increased membership the proper conduct of its affairs required the installation of sanitary equipment, the maintenance of a business office, and the housing of a caretaker, at the premises.

In August, 1950, the board of adjustment rendered its decision in which it expressed the view that the proposed building was not "in real effect an enlargement or extension of a nonconforming use," determined that "undue or unnecessary hardship" within the terms of the ordinance and R.S. 40:55-39 had been established, and recommended to the board of commissioners that the variance be granted. In October, 1950, the board of commissioners approved the findings and recommendation. This action was sustained by the Law Division and the appeal to this court was duly taken by the plaintiffs who are objecting neighbors.

It is settled that although R.S. 40:55-48 permits the continuance of nonconforming uses, it does not contemplate their enlargement or extension. Home Fuel Oil Co. v. Glen Rock , 5 N.J. Super. 63, 67 (App. Div. 1949). Recent decisions by our courts have stressed that the spirit of the Zoning Act is to restrict rather than increase nonconforming uses and that authority to vary the application of general zoning restrictions should be sparingly exercised. Lumund v. Rutherford , 4 N.J. 577, 585 (1950). In R.S. 40:55-39, which relates primarily to variances and exceptions,

the Legislature has, among other matters, directed that relief thereunder shall not be had unless it can be granted "without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance." Although a board's determination under this provision and grant of variance are presumptively correct and will not ordinarily be displaced on judicial review, our courts have not hesitated to grant relief where the determination and grant of variance lacked reasonable basis. See Stolz v. Ellenstein , 7 N.J. 291 (1951); O'Connor v. North Arlington , 1 N.J. Super. 638 (Law Div. ...


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