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Hay v. Board of Adjustment of Borough of Fort Lee
Decided: October 21, 1955.
WILLIAM HAY, PLAINTIFF-RESPONDENT,
BOARD OF ADJUSTMENT OF THE BOROUGH OF FORT LEE, THE BUILDING INSPECTOR OF THE BOROUGH OF FORT LEE, AND THE BOROUGH OF FORT LEE, IN THE COUNTY OF BERGEN, A MUNICIPAL CORPORATION OF NEW JERSEY, DEFENDANTS-APPELLANTS
Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
This is an appeal from a judgment of the Law Division directing the Building Inspector of the Borough of Fort Lee to issue a building permit to the plaintiff.
Plaintiff is the owner of premises at 1217 Palisade Avenue in the borough. He has operated an automobile service station there continuously since 1930.
In August 1941 a zoning ordinance was adopted for the first time. Hay's property was included in the one-family residence zone. Operation of the station continued thereafter as a nonconforming use.
With the passage of years, the building and equipment deteriorated and modernization and repair were considered necessary. In May 1954 Hays applied for a building permit to accomplish this. It is conceded that the plans and specifications presented to the building inspector were in proper form. However, the application was rejected on the ground the planned construction constituted an unlawful enlargement and extension of a nonconforming use.
A variance was then sought from the board of adjustment which sustained the inspector, stating:
(2) That the proposed 'redevelopment' anticipates demolishing the existing structure and erection of a new building on a different part of the plot with various other installation changes.
(3) That the proposed structure is an increase in area over the existing building. * * *"
In this action in lieu of prerogative writ, plaintiff charged that his nonconforming use gave him a legal right to the permit and further that the board of adjustment acted arbitrarily and unreasonably in refusing to recommend a variance. After hearing testimony as to the character of the structural changes sought to be made, the trial court ordered the building inspector to issue the permit. The ruling resulted from a finding that the changes would not enlarge or extend the existing use. In our judgment, this was error.
Reference to some fundamentals may be useful for orientation purposes. A prime purpose of zoning is to bring about the orderly physical development of the community by confining particular uses to defined areas. Nonconforming uses are inconsistent with that purpose. They are recognized and permitted to continue only because they are antecedent to the ordinance. However, the policy of the law is to restrict them closely; although they may be continued they may not be enlarged or extended. Monmouth Lumber Co. v. Ocean Township , 9 N.J. 64 ...
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