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Tomko v. Vissers

Decided: March 26, 1956.

JOHN E TOMKO, ET AL., PLAINTIFFS-APPELLANTS,
v.
WILLIAM VISSERS, MAYOR, ET AL., DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Burling, J. Wachenfeld, J., concurring in result.

Burling

This appeal stems from the Superior Court, Law Division, which affirmed the grant of a variance by the Township Committee of Green Brook Township, Somerset County, New Jersey, on the recommendation of the local board of adjustment pursuant to N.J.S.A. 40:55-39(d). We certified the cause prior to an appellate review below.

Green Brook Township is a locale predominantly residential in character. Its zoning ordinance divides the territory into four districts: Residence Zone A, Residence Zone B, Business Zone and Light Manufacturing Zone. The use restrictions governing the residential zones permit dwellings or tenements, boarding houses and hotels, churches, schools, libraries and public museums, hospitals, sanitariums, cemeteries, certain philanthropic institutions, farming, greenhouses, buildings housing public utilities (with certain restrictions), and clubs whose chief activity or service is not carried on as a business.

The property in question is a 12-acre tract of vacant land located in the Residence Zone A. It is owned by George and Aurelia Carlson who have contracted to sell the property to Jack Liddy, a representative of the Green Brook Swimming Club, conditioned upon a grant of the variance in question. The Swimming Club is an unincorporated association presently composed of five members. The design of the enterprise, so far as discernible from the record, is to construct a swimming pool for the enjoyment of club members. Membership will be restricted to some 300 families upon an annual dues basis of $250-300. It represents a business venture.

The doubt created by the ordinance in prohibiting clubs "the chief activity of which is a service carried on as a business" from the residential zone caused the club representative, Jack Liddy, to apply for a variance to the board of adjustment. (The record does not indicate that a building permit was applied for.) Notice was served upon adjoining property owners, R.S. 40:55-44, and the board held meetings on the 5th and 6th of January, 1955. The hearing was accorded on the first evening. Four of the five board members were present. The minutes of the board (which were not before the trial court for reasons subsequently noted) indicate that the applicant's sole presentation was a "layout map" and an "artist's sketch." The board discussed the matter with various members of the public who were present and no objections to the application were voiced at that time.

On the following evening the board assembled to vote on the application. Four members were present, one of whom had not attended the hearing. The vote was 3-2 to recommend to the township committee that the variance be granted. One member was polled by telephone. Thereafter, the board addressed a letter of transmittal to the township committee which discloses the following statement:

"In considering this request the following points were discussed.

1. The land is low and not too suitable for a home development.

2. The use of the land as proposed would, if carried out as presented, improve the area.

3. That, if granted, a statement of operations should be required which would be binding.

4. That, if in the opinion of the Police Dep't, an officer were required during certain hours such officer should be paid for by the club.

5. Residents adjoining the property appeared to be in favor of the installation.

6. No objections were presented at the hearing.

7. Such an installation, while providing certain tax benefits, would in no other way ...


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