On appeal from Superior Court, Law Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Burling, J.
[16 NJ Page 602] This appeal arises from a civil action, in lieu of prerogative writ, in the Superior Court, Law Division,
brought principally to test the validity of a zoning variance. George A. Dolan, Alice Dolan, his wife, Archie H. Ormond and Helen R. Ormond, his wife (hereinafter referred to as the plaintiffs) instituted the action against Michael DeCapua and Helen DeCapua, his wife (hereinafter referred to as the DeCapuas) and against Robert T. White, Building Inspector of the City of East Orange, The Board of Adjustment of the City of East Orange and The City Council of the City of East Orange. The variance subjected to this suit related to the use of a six-car garage on the DeCapuas' property. From the judgment of the Superior Court, Law Division, appeal by the defendants building inspector, board of adjustment and city council, cross-appeal by the plaintiffs and cross-appeal by the defendants DeCapua were taken to the Appellate Division of the Superior Court. Prior to hearing there, certification of all three appeals was allowed on our own motion.
Many of the facts in this case were stipulated; other facts are found uncontroverted in evidence introduced by consent on the trial of the action. At the times covered by the sequence of events involved in this matter the plaintiffs and the DeCapuas resided in residences fronting on Warrington Place in the City of East Orange, New Jersey. The testimony and the zoning maps in evidence disclose Warrington Place to be a street running only from North Grove Street on the West to North 19th Street on the east. Warrington Place is not intersected by other streets and its length is approximately 1200 feet.
In December 1949 the building inspector of the City of East Orange issued a permit for the erection of a six-car garage on DeCapuas' property, upon which there then existed a "very large" residence and a two-car garage. The new garage was erected, being completed on or about January 14, 1950.
On or about April 24, 1950 the plaintiffs appealed to the board of adjustment to review the issuance of the building permit. A hearing was held on May 18, 1950 at which testimony was taken and exhibits were offered and received
in evidence. On May 31, 1950 the board of adjustment dismissed the plaintiffs' appeal. The plaintiffs, about June 14, 1950, instituted a civil action in lieu of prerogative writ in the Superior Court, Law Division. They sought thereby the invalidation of the building permit and sought a judgment requiring the removal of the DeCapuas' six-car garage. That action subsequently terminated in a judgment reversing the determination of the board of adjustment and voiding the building permit, but removal of the garage was not required by the judgment. Dolan v. DeCapua, 13 N.J. Super. 500 (Law Div., 1951). No appeal was taken from that judgment.
The use of the six-car garage intended by DeCapuas, and effected by them for a portion of the time elapsed between the completion of it and the institution of the present proceedings, was the housing of flower cars used for funeral processions, and limousines used by the DeCapuas for transporting persons in connection with funerals and wedding processions. In December 1949 the existing zoning ordinance, pertinent provisions of which originated as far back as 1921, established the properties fronting on Warrington Place as a "small volume residence" zone. Properties at the corners of Warrington Place and North Grove Street, and Warrington Place and North 19th Street were in a "medium volume residence" zone which surrounded this Warrington Place zone on three sides (east, north and west) with the exception of a corner to the northeast (namely, the southwest corner of Fourth Avenue and North 19th Street) which was zoned for "medium volume business." The Warrington Place zone was bounded on the south by properties fronting on the north side of Park Avenue, then in a "large volume residence" zone extending for many blocks along both sides of Park Avenue. A Park Avenue apartment house, with a rear parking lot for tenants, existed in this "large volume residence" zone, immediately to the rear of the DeCapuas' Warrington Place property. The zoning ordinance existing in 1949 authorized private garages as accessory uses in the Warrington Place zone, and limited construction and use of such garages as follows:
"* * * A private garage to be deemed an accessory use shall not provide storage for more than one motor vehicle for each 2,000 feet of ground area of the lot, and of which not more than one vehicle may be a commercial motor vehicle of not more than two tons capacity. Space for not more than two non-commercial vehicles may be leased. * * *"
There is uncontradicted evidence that the DeCapuas' lot was of adequate size to justify garage space for eight vehicles under the terms of the ordinance as above quoted. The invalidation of the building permit in the prior action was not premised upon violation of the ordinance by the structure but was premised upon use violation. Judge Daniel J. Brennan in the prior action held: "The maintenance of a garage housing limousines, used for hire and licensed as auto-cabs or omnibuses, is neither an 'accessory use' nor a use 'customary or incident' to a one-family housing accommodation" (13 N.J. Super., at p. 508), and "Since the use of the new garage is not one customarily incident to the occupation of a single-family residence it falls within the prohibition of the ordinance." (13 N.J. Super., at p. 509). Although the area was zoned for single-family residences, professional offices, clubs, churches, convents, schools, libraries, museums, and memorial buildings were permitted, as well as "boarding and the renting of furnished rooms." Dwellings at Nos. 9, 24, 37 and 40 Warrington Place were licensed rooming houses. No. 84 Warrington Place was a convent. The plaintiffs Dolan resided at No. 73 adjoining No. 81, the DeCapuas' property. The plaintiffs Ormond resided at No. 64, diagonally (to the northwest) across the street from the Dolans' property.
After the decision (May 24, 1951) and judgment of the Superior Court, Law Division, entered on June 5, 1951, in the prior suit, DeCapuas' use of the garage "lessened." However, by August 1952 it appears to have been resumed to some extent. On August 6, 1952 Mr. Ormond wrote Michael DeCapua, requesting him "to conform to the judgment and the ordinance." Michael DeCapua testified that
he removed all but two of the vehicles from the garage and kept them out until he obtained a certificate of occupancy in 1953.
In the interim Ordinance No. 15 of 1951 was enacted (effective October 25, 1951) in East Orange. This was a revision of the zoning regulations of that municipality. With respect to the areas hereinbefore described the sole change in classification was the rezoning of the adjacent Park Avenue area from "large volume residence" to "medium volume residence." The zoning regulations for "small volume residence" zones were changed, however, eliminating boarding and lodging as a permitted use and restricting more closely the construction and use of private garages.
Michael DeCapua on or about September 22, 1952 applied to the board of adjustment for a variance to permit use of the six-car garage "for the accommodation of six motor vehicles." The board of adjustment by resolution of October 16, 1952 declared that "exceptional and undue hardship upon the owner" existed and recommended a variance. The city council by resolution of December 8, 1952 approved the recommendation by a vote of 6 to 3 (one member being absent) but its action was vetoed on December 17, 1952 by Mayor Martens. The veto was not overridden.
In February 1953 Michael DeCapua filed a new application for variance with the board of adjustment. This application was more specific, seeking permission to use the six-car garage "for the accommodation of certain motor vehicles, being limousines and flower cars, which motor vehicles are for hire, the former for the transportation of persons and the latter for the carrying of flowers and floral arrangements." On April 9, 1953 the board of adjustment unanimously adopted a resolution recommending to the mayor and city council the grant of a variance for this use. The city council on May 11, 1953 approved the variance, but on May 20, 1953 the mayor, William M. McConnell, vetoed the ...