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Adler v. Department of Parks and Public Property

Decided: June 26, 1952.


Eastwood, Bigelow and Francis. The opinion of the court was delivered by Francis, J.c.c.


[20 NJSuper Page 241] Appellant owns the premises located at 102-104 Welland Avenue, Irvington, New Jersey, on which

he conducts a wood-working and screen manufacturing business. The location is designated a Residence "B" district under the town zoning ordinance. However, no violation exists because the use is a preexisting nonconforming one.

On January 31, 1951, an application was filed with the superintendent of buildings, in which a permit was sought to build a three-car garage on the premises. On February 1, 1951, the plans were approved and a permit was issued. Construction began almost immediately and inspections were made by the department inspector on at least two occasions in February during the progress thereof.

Apparently it was discovered that the construction was violative of the ordinance and the inspector's report of March 5, which appears on the reverse side of the permit application, notes, "Work stopped pending Zoning Board of Adjustment." On March 30 the building superintendent revoked the permit and so notified Adler. At this time it is undisputed that financial obligations had been incurred and that a substantial part of the project had been completed.

Appellant bowed to the mandate to cease work and then sought a review of the revocation by complaint in lieu of prerogative writ. Following a pretrial conference the matter came on for hearing, at which time a determination was made adverse to him on the basis of the pleadings, pretrial order and certain exhibits. The complaint was dismissed, the trial court holding that the proposed additional garage building constituted an unlawful extension of a preexisting nonconforming use.

On this appeal Adler presents two issues: (1) the permit was a valid one and should not have been revoked; (2) the town was estopped to revoke it because of the financial obligations he had incurred and the advanced state of the building at the time the permit was recalled.

As to the first issue, the claim is that in a Residence "B" zone a three-car garage is permissible as an "accessory use." This argument overlooks the language and intent of the ordinance. It is true that section 5, subsection (1) sanctions

as an accessory use in a residence district a garage or group of garages for the storing of three motor vehicles. But section 5 prescribes that in Residence "B" zone a building or premises shall be put only to certain specified uses, and appellant's use does not conform with any one of them. Reading the introductory part of this section in conjunction with subsection (1) the plain intendment is that an accessory use is one which is customarily incident to a use specified for the zone. A nonconforming use is not a specified use and consequently the provision sanctioning and describing an accessory use is not applicable to appellant.

It is the policy of the law to restrict closely uses which do not conform with zoning ordinances; such use may be continued, the buildings may be repaired or restored, but the use cannot be enlarged or extended. Rupprecht v. Draney , 137 N.J.L. 564 (Sup. Ct. 1948), affirmed 1 N.J. 407 (1949); Home Fuel Oil Co. v. Board of Adjustment of Glen Rock , 5 N.J. Super. 63 (App. Div. 1949); Green v. Board of Commissioners of Newark , 131 N.J.L. 336 (Sup. Ct. 1944). Construction of the proposed garage obviously constitutes an enlargement of an unauthorized use and the accessory use provision not being applicable, the superintendent of buildings acted without legal warrant in issuing the permit.

It remains to be considered whether the doctrine of estoppel is invocable to prevent the revocation. The general rule is that the government or its instrumentalities may not be estopped by "acts of its officers or agents in violation of positive law, as by acts in violation of a zoning ordinance, or of fire regulations." 31 C.J.S. 421, Estoppel, sec. 142.

To support the affirmative of the argument reliance is placed almost exclusively upon Freeman v. Hague , 106 N.J.L. 137 (E. & A. 1929). However, the building permit there was granted prior to the adoption of the Zoning Act (L. 1928, c. 274), and the decision has been ...

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