Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.
[41 NJSuper Page 76] Defendants appeal from a Law Division judgment which held that the prohibition of the
Borough of Ridgefield zoning ordinance against used car lots in a D business district did not apply to the sale of used cars by plaintiff Stillman & Hoag, Inc., "as an adjunct and part of their business of selling new cars" upon the premises in question.
Plaintiff Van Corporation, a holding company, is the owner of premises used by Stillman & Hoag, Inc., an accredited Buick dealer for 23 Bergen County municipalities, with showrooms in Englewood, Teaneck, Bergenfield and Ridgefield. Late in 1954 Van Corporation purchased lots 1 to 7 and half of lot 8, Block 114, located at the northeast corner of Bergen Boulevard and Edgewater Avenue, running 150 feet along Bergen Boulevard and fronting 100 feet on Edgewater Avenue. In March 1955 it acquired the remainder of lot 8, and lots 9 and 10, located to the north of the original purchase, so as to create a lot measuring 200 x 100 feet. It admittedly purchased these lands with full knowledge of the zoning ordinance prohibition against used car lots.
Stillman & Hoag, Inc. applied to the defendant borough building inspector for a permit to construct a modern showroom for the display and sale of new and used automobiles. The building was to be constructed on the southern part of the lot and was to consist of a small glass-enclosed office with a wide overhang beneath which new cars were to be displayed. The rear and northern part of the lot was to be used for the storage, display and sale of used cars.
The plot, formerly occupied by a gasoline station (a nonconforming use), is located in the D business zone which runs along Bergen Boulevard to a depth of 100 feet on each side. The boulevard is a heavily trafficked three-lane state highway leading south to the George Washington Bridge. Edgewater Avenue is a two-lane county road which also carries much traffic. Bergen Boulevard to the north and south of the premises in question is about 50% residential, the other uses being commercial. The area to the east is largely residential.
The building inspector denied plaintiff's application for a building permit, and this refusal provided the basis for
the first count of plaintiffs' complaint in lieu of prerogative writ. This count was later dismissed by consent, a permit for the proposed showroom having in the meantime been issued for the erection of a structure for the limited purpose of the display and sale of new automobiles.
Ridgefield's zoning ordinance prohibited used car lots throughout the borough except in E business zones. It is obvious from the record that the borough thereby sought to escape the blight visited upon the neighboring community of Little Ferry, which had become a mecca for used car lots along Route 46 traversing that municipality, with their attendant noise and garish lighting.
In the spring of 1955 plaintiff Van Corporation applied to the Board of Adjustment of Ridgefield for a variance that would permit Stillman & Hoag to carry on the business of selling new and used cars on the corner in question. It is agreed that the application was made pursuant to N.J.S.A. 40:55-39(d), which authorizes a board of adjustment to recommend "in particular cases and for special reasons to the governing body of the municipality the granting of a variance to allow a structure or use in a district restricted against such structure or use." We do not have a record of the proceedings before the board; instead, we have a letter addressed by the board to the mayor and council stating that a "thorough public hearing" had been held, setting forth the reasons for the board's unanimous decision to deny a variance, and recommending denial by the governing body. (There was, of course, no occasion for the mayor and council to consider the matter since, under N.J.S.A. 40:55-39(d), a variance can be allowed by the governing body only when it is preceded by an affirmative recommendation of the board of adjustment.) The governing body subsequently joined in refusing to grant the requested variance.
The issues before the Law Division, as framed by the pretrial order, reaffirmed at the trial, and reiterated in the oral conclusions of the trial judge at the close of the hearing, were: (1) the legality of the building inspector's refusal to ...