Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
[42 NJSuper Page 476] The plaintiffs in this action are residents and property owners of the Borough of Allendale. The defendants are the borough, its mayor, councilmen and building inspector, and also Mary Job, Pasko C. Job and Ann Mary Job. On February 14, 1929 Allendale adopted its original zoning ordinance. The defendants Pasko and Ann Job own a 2 1/2-story building, residential in appearance, which, notwithstanding some changes made from time to time in the ordinance, has always been located in a residential
zone. However, the first floor of the building has been operated from prior to February 14, 1929 to date, as a restaurant and bar. We are not concerned with this floor, except incidentally. Concededly it is a nonconforming use protected by N.J.S.A. 40:55-48. Our concern is with the use that has been made of the second floor for dining and dancing, with music. To state the matter specifically, the appeal and cross-appeal raise these questions: are these nonconforming uses protected by the statute; and if not, are plaintiffs barred from objecting to them because of laches or R.R. 4:88-15(a)?
The complaint is in two counts. In the first count plaintiffs sought to have the court invalidate an ordinance, adopted May 13, 1954, which amended the Allendale zoning ordinance solely for the purpose (as the trial court found) of creating in the residential district a small isolated business district comprised of the premises above mentioned and an adjoining property owned by the defendant Mary Job. In the second count plaintiffs demand the following relief: an injunction enjoining Pasko and Ann Job from enlarging the nonconforming use; prerogative writ relief compelling the borough officials to enforce the zoning ordinance against Pasko and Ann Job; and like relief invalidating building permits and certificates of occupancy, insofar as they authorize such an enlargement.
The trial court entered judgment sustaining the first count and declaring the amendatory ordinance void; no appeal is taken as to that matter. However an appeal is taken by the Jobs from the following part of the judgment:
"It is further ordered, * * * that the use of the said second floor for dancing and for music for dancing is not a part of the nonconforming use and is prohibited by the Allendale zoning ordinance."
And a cross-appeal is taken by the plaintiffs from the provision of the judgment adjudicating
"that the use of the second floor * * * for dining and for a meeting room is a part of the nonconforming use."
A word might be said as to the burden of proof which rests on the respective parties in an action such as this. Plaintiffs make out a prima facie case with respect to the second floor by establishing that the present zoning ordinance prohibits the use of that floor for dining and dancing. It then falls upon the defendants, the owners and the public officials, to establish that the use, though nonconforming, nevertheless existed at the time of the passage of the ordinance; and where (as here) ordinances and amendments thereto have been adopted, which place a property from time to time in various zones in all of which, however, the use has been prohibited continuously over a period, then defendants must establish that this use existed when the first of these ordinances was adopted. This places a heavy burden on defendants in situations such as that before us, where (of course, it is happening more and more often) the applicable zoning ordinance was adopted over 20 years ago. However, a rule such as this, under which he who claims a nonconforming use is compelled to establish his claim, comports with the policy of the law in this State not to favor such a use. Ranney v. Istituto Pontificio Delle Maestre Filippini , 20 N.J. 189, 196 (1955).
Under the rule stated, the defendants had the burden of establishing that the second floor was used for dining and dancing, with music, on February 14, 1929. The record is embarrassingly sketchy on the point. One witness, ten years old in 1929, furnishes the only proof as to the locus at the time:
"The rooms [on the second floor] that I had entered had tables and chairs * * * and there were a couple of bedrooms, to my recollection."
Are we to infer from the allusion to "tables and chairs" that the "rooms" were set up and used as public dining rooms? By the reference to "rooms" (excluding a "couple of bedrooms"), did the witness include a room 20' x 30' which in later years was used by small groups for dining
purposes? The briefs do not deal with these questions sharply. However, plaintiffs concede that the room 20' x 30' may have been used for public dining and meeting purposes in 1929; and the formalized conclusions in plaintiffs' briefs seem to make the same concessions. In any event, with regard to this area of 20' x 30', we conclude that plaintiffs have not carried the burden which is theirs, as cross-appellants, to establish error in the judgment below; "to raise a doubt in that respect is not enough." Smith v. Mayor and Common Council of Newark , 33 N.J. Eq. 545, 552 (E. & A. 1881). We will sustain the judgment insofar as it holds that the use of this area for dining and meeting purposes is protected by the statute. But the proofs do not warrant a finding that any additional part of the second floor was used for those purposes in 1929.
Nor is there any evidence whatever of music and dancing on the second floor in 1929. Mr. Job admitted that though there was dancing "occasionally" in the room 20' x 30' during (in any event) the early 1950s, there was none there during a prior period when his father operated the restaurant. (Nothing has been said by counsel as to an abandonment of any use.)
In fact there is no satisfactory proof of dancing on the first floor in 1929 (though it appears in the record that there was dancing on the first floor from 1933 on). Defendants put in evidence an opinion of the Bergen County Court of Common Pleas handed down in 1933 which reversed convictions of Mr. Job's father and mother and a corporation, of violating the Allendale zoning ordinance in connection with the operation of these premises. In a dictum , the court indicated clearly that there was a restaurant business in existence there in 1929, but the opinion, though possibly suggestive, is quite inexplicit as to the matter of dancing at that time. Accordingly, even if we assume that such an opinion and the order thereon are evidentiary (cf. Mead v. Wiley Methodist Episcopal Church , 23 N.J. Super. 342, 351 (App. Div. 1952); but cf. Local 167 of International Brotherhood of Teamsters, etc. v. United
States , 291 U.S. 293, 298, 54 S. Ct. 396, 78 L. Ed. 804, 809 (1933)), we do not think there is enough set forth therein on which to rest a finding by this court to that effect. In fact, defendants Job do not ask us to do so. We therefore do not reach the possible question (which indeed is not raised by counsel) whether dancing on the second floor is merely an unsubstantial extension of a protected right to use the first floor for that purpose.
We come then to the first question raised by the Jobs on the appeal: do the complaint and pretrial order raise the issue whether there was dancing and music for dancing on the second floor? In the complaint it is alleged that there had been an extension of a nonconforming use causing "disturbance, annoyance and discomfort." In any event, a number of witnesses were examined and cross-examined on the matter of dancing and music; and we are satisfied that the parties squarely recognized it as an issue below and in fact tried it, and that hence the Jobs are now precluded from complaining that it was not stated explicitly in the complaint and pretrial order. R.R. 4:15-2; Schnitzer & Wildstein, N.J. Rules Serv. A IV-386.
Defendants next claim that the right to operate a bar and restaurant on the first floor and a restaurant on the second floor (or at least in a portion of it) embraces, as an incident, music and dancing. N.J.S.A. 40:55-48 does not protect a nonconforming use unless it is substantially the same kind of use as that to which the premises were devoted at the time of the passage of the zoning ordinance. Kensington Realty Holding Corp. v. Jersey City , 118 N.J.L. 114, 115 (Sup. Ct. 1937), affirmed 119 N.J.L. 338 (E. & A. 1938). In particular, the question here is whether there is a substantial change in the kind of use if a room, which had been used for dining, were to be used for dining with music and dancing. We find no case on the point. For the benefit of the bar we ...