On appeal from Superior Court, Law Division, and certification by this court of its own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.
This is a zoning case. We certified of our own motion the appeal of plaintiff to the Appellate Division from the judgment entered in the Law Division against the plaintiff corporation and in favor of the defendants, Board of Adjustment of the Township of Middletown and David Simpson, Building Inspector of said Township.
Herbert N. Straus and Therese Kuhn Straus, his wife, for many years maintained a country estate of 70 acres in Middletown Township with acreage on both sides of Cooper Road, the mansion house being on the larger part north of the road. On the 23-acre parcel south of the road Mr. and Mrs. Straus built a group of accessory buildings -- a dairy, cow barns, stables, machinery shops, manure barn, a large garage, living quarters for bachelor workmen of the estate, and a cottage containing the workmen's dining room and commodious living quarters for other persons in their employ. All of the buildings except the manure barn, the garage and the cottage are grouped in the form of a square around a cobbled court. The garage is close by the group. The cottage stands apart from the group across an artificial pond and is connected to the group by an arched stone colonnade running along the pond. The manure barn is a distance removed from the group. The buildings are of expensive construction, "elaborate," with cast stone walls, tile roofs and floors, mullioned windows, oak panelling, "an architectural showplace," "a thing of beauty." The evidence discloses that the replacement cost of the buildings would
approximate $417,000 and that their present sound value after allowance for depreciation is about $292,000.
After Mr. Straus' death the mansion house and the acreage on the north side of Cooper Road were sold. Later, on December 6, 1949, plaintiff's president and his wife acquired at public auction the 23-acre parcel with the accessory buildings for the sum of $28,000, taking title on March 6, 1950 in the name of plaintiff corporation which they organized as their nominee for the purpose. The president and his wife took up residence in the cottage. Plaintiff corporation has invested an additional $20,000 in improvements, but whether to the cottage alone or to the buildings generally does not appear.
The instant controversy grows out of plaintiff's desire to convert the manure barn into a one-family dwelling and the group of buildings around the cobbled court into eight one-family residences. The trial court found that the plans for the eight residences would result in "multiple family units having a common roof, common walls and a common heating plant." The plan is not for residences on separate lots. No subdivision of the 23-acre parcel was made. The plan proposes that a dairy building and a portion of a cow barn connected with it would make up one residence; the remaining portion of that cow barn, all of another cow barn and a two-story feed barn would make the second; the horse barn and a portion of the machinery barn would provide the third; another portion of the machinery barn would supply the fourth, and still another portion of the same machinery barn would provide the fifth; and that the building formerly used as quarters for bachelor employees, which is under one roof, would make up into three residences. The township zoning ordinance expressly forbids multi-family units, and it is plain that a consummation of plaintiff's plan would violate that regulation.
The defendant building inspector denied plaintiff a building permit for the proposed alterations because the structures as so altered would not comply with the requirements
of the zoning ordinance. Plaintiff appealed to the board of adjustment and also applied to that board for a variance from the provisions of the ordinance. The board sustained the action of the building inspector and denied the variance. The judgment entered in the Law Division sustained the board of adjustment as to both determinations.
The conveyance to plaintiff was made expressly subject to the township's zoning ordinance. The ordinance was originally adopted in 1935 and was substantially amended and revised in 1949, about two months before the auction sale.
Middletown is a sprawling community of great area and is predominantly residential. All but a small portion of the township is zoned for residential purposes. There are five residence districts, A to E, inclusive. The provisions applicable to structures in Zone A, wherein plaintiff's property is located, are designed to make that zone "the highest type zone in the township," and it is primarily a district of substantial homes on sizeable plots. The zone is in the southeast section of the township, running along the Navesink River for some two and one half miles and ...