For modification and remandment -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis and Proctor. For affirmance -- Justice Heher. The opinion of the court was delivered by Jacobs, J. Burling, J. (concurring). Burling, J., concurring in result.
The Appellate Division, in an opinion reported at 51 N.J. Super. 53 (1958), set aside a zoning variance which had been recommended by Belmar's board of adjustment, approved by its board of commissioners, and sustained by the Law Division. We granted certification on the application of the appellant J. Henry Dangler. See 28 N.J. 57 (1958).
The appellant is the owner of the Dangler funeral home which is conducted in a 14-room dwelling house located at the corner of South Lake Drive and Eighth Avenue in Belmar. Under the terms of a 1953 revision of the local zoning ordinance, the surrounding area was placed in a residential zone confined to one-family dwelling houses but the pre-existing funeral home was properly continued as a nonconforming use. The first floor of the 2 1/2-story Dangler house is used in connection with the operation of the funeral home and the upper floors contain rooms which are vacant in addition to rooms used by Dangler as living quarters. The house has an attractive appearance with a frontage of 40 feet facing west on South Lake Drive, a depth of 40 feet on the Eighth Avenue side and a projection of ten feet at the rear of the house near the side distant from Eighth Avenue. A porch ten feet in width extends across the front of the house and also along the Eighth Avenue side. Steps lead from the rear of the porch along the Eighth Avenue side to a sidewalk and driveway in the rear of the house.
On February 14, 1957 Dangler applied for a building permit to construct an extension which would be ten feet in width, 26 feet in length and 11 feet in height. The extension would join the building at a point between the rear porch steps and the ten-foot projection and would have the effect of straightening the back portion of the building. It would contain an office, smoking room, elevator and stairway to the rear of the funeral home. The application also sought permission to make a ten by 24 foot addition to Dangler's garage. On February 25, 1957 the building inspector
denied the application in its entirety. Thereafter Dangler appealed to the board of adjustment, which conducted a hearing on March 8, 1957. At the hearing Dangler appeared in support of his application and several objectors, including the plaintiffs Elise L. Grundlehner and Henrietta M. Eicks, appeared in opposition. Mrs. Grundlehner resides on Eighth Avenue in a house which was acquired in 1953 with full knowledge that the Dangler premises were being operated as a funeral home. Mrs. Eicks owns a lot on Eighth Avenue which does not bear a house and she believes that the proposed addition will lessen the value of her land.
Mr. Dangler's position before the board of adjustment was that the proposed addition would not entail any increased business in the funeral home and would lessen the incidents which residents in the area might find objectionable. As he put it, he has no "bargain sales" in his business, his proposed addition contemplates no "extension of the use" although it contemplates a physical extension of the building, and he is "trying to improve the place for the people who come there and trying to get rid of some of the unsightly things outside." Mr. Pierce, a member of the board of adjustment, expressed the view that the application involved a small extension which would "hide the operation of his business"; Mr. Heyniger, a member of the board, stressed the fact that the operation of the business would not be enlarged; and Mr. Bennett, a member of the board, noted that the addition would make "the normal operation of the business less objectionable and less obvious" since Dangler is "now forced to bring remains out along the side and with the new addition will take the caskets from the door to the hearse." Mr. Bennett also noted that whether the application was granted or denied the funeral home would in all likelihood continue to operate. The board, without adopting any formal resolution embodying basic and ultimate factual findings, recommended that Dangler's application be granted in its entirety. On April 9, 1957 the board of commissioners, after having considered the proceedings before the board of adjustment and having viewed the premises,
approved the recommendation and granted a variance insofar as the proposed addition to the building was concerned, but disapproved the recommendation and denied a variance for the proposed addition to the garage. Its formal resolution set forth that the granted variance would correct "a peculiar and exceptional practical difficulty and hardship," would be "without substantial detriment to the public good," and "would not substantially impair the intent and purpose of the zoning plan and the zoning ordinance."
On April 24, 1957 the plaintiffs filed their complaint in the Law Division seeking to set aside the resolution of the board of commissioners insofar as it approved the variance for the proposed addition to the funeral home itself. Answer was duly filed and the matter was tried before Superior Court Judge Ewart, who found that the variance contemplated "a small, rather than a substantial enlargement of the Dangler Funeral Home building" and that the relief granted "will not be detrimental to the public good and will not substantially impair the intent and purpose of the zone plan and ordinance." His dismissal of the plaintiffs' action was appealed to the Appellate Division which, on June 27, 1958 reversed on its finding that the size of the proposed extension "raises doubt" as to whether it is "insubstantial," that it did not see how Dangler could prove that the alteration would be "insubstantial," and that the action of the board of commissioners was therefore "unreasonable." See 51 N.J. Super. at page 61.
The appellant urges that the proposed structural addition would in no wise increase the number of funerals but would allow removal of caskets directly from the building to adjacent vehicles in the rear parking lot, thereby avoiding the undesirable incidents of having the caskets carried to the street for placement in vehicles waiting there; that the new smoking room would eliminate the milling and crowding by patrons along the street and facilitate matters for them within the funeral home; that the elevator would alleviate the burdensome task of lifting and aid in the
elimination of the present need for carrying caskets to the street; that the addition would not be detrimental to the public good or impair the intent and purpose of the zoning ordinance but would improve the appearance of the neighborhood and remove or greatly reduce the objectionable features of the presently existing nonconforming use; and that the setting aside of the variance was erroneous since there was no showing that the board of commissioners had acted arbitrarily or in abuse of its discretionary authority under N.J.S.A. 40:55-39(d). On the other hand, the respondents urge that the proposed addition is simply intended to aid the conduct of the appellant's business and would constitute an improper extension of the pre-existing nonconforming use; and they take the position that the variance was properly set aside since it allowed a substantial enlargement, was not supported by sufficient evidence and findings of special reasons and non-impairment of the zone plan, and did not meet the statutory criteria set forth in N.J.S.A. 40:55-39(d). Compare Ward v. Scott, 11 N.J. 117 (1952), 16 N.J. 16 (1954) with Ranney v. Istituto Pontificio Delle Maestre Filippini, 20 N.J. 189 (1955). See Moriarty v. Pozner, 36 N.J. Super. 586 (App. Div. 1955), reversed 21 N.J. 199 (1956); Whitehead v. Kearny Zoning Bd. of Adjustment, 51 N.J. Super. 560, 568 (App. Div. 1958); Grimley v. Ridgewood Village, 45 N.J. Super. 574, 581 (App. Div. 1957), certification denied 25 N.J. 102 (1957); Shestack, "Municipal Corporations," 11 Rutgers L. Rev. 96, 108 (1956); Schloeder, "Boards of Adjustment and Subdivision (D) Die Together," 81 N.J.L.J. 141 (1958); Note, "Zoning Under the Constitution of 1947," 9 Rutgers L. Rev. 697, 709 (1955).
When the Zoning Act of 1928 was passed (L. 1928, c. 274) it contained a provision to the effect that any nonconforming use or structure existing at the time of the passage of the local zoning ordinance may be continued as of right. R.S. 40:55-48. This provision, comparable to that contained in zoning enactments throughout the country, was included because of urgent practical necessities and suggested constitutional [29 NJ Page 263] requirements of due process. See Ranney v. Istituto Pontificio Delle Maestre Filippini, supra, 20 N.J. at page 195; Jones v. City of Los Angeles, 211 Cal. 304, 295 P. 14, 17 (Sup. Ct. 1931); 1 Yokley, Zoning Law and Practices § 147 (2 d ed. 1953). Shortly after the passage of the Zoning Act our courts stated that the spirit of the law was to restrict nonconforming uses and that while R.S. 40:55-48 permitted them to continue as of right it did not permit their enlargement as of right. See Conaway v. Atlantic City, 107 N.J.L. 404, 407 (Sup. Ct. 1931); DeVito v. Pearsall, 115 N.J.L. 323, 325 (Sup. Ct. 1935); cf. Green v. Board of Commissioners of City of Newark, 131 N.J.L. 336, 338 (Sup. Ct. 1944); Sitgreaves v. Board of Adjustment of Town of Nutley, 136 N.J.L. 21, 27 (Sup. Ct. 1947). Since the nonconforming uses were generally discordant to their surroundings it was the fervent hope that they would in time wither and die and be replaced by conforming uses. See 2 Metzenbaum, Law of Zoning 1210 et seq. (2 d ed. 1955). But actual experiences have indicated otherwise and in some jurisdictions the authorities have deemed it necessary to take legislative steps towards compelling their early abandonment. See Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 129 A. 2 d 363 (Ct. App. 1957); Standard Oil Co. v. City of Tallahassee, 183 F.2d 410 (5 Cir. 1950), certiorari denied 340 U.S. 892, 71 S. Ct. 208, 95 L. Ed. 647 (1950); Note, "Nonconforming Uses: A Rationale and an Approach," 102 U. Pa. L. Rev. 91 (1953). In our State there have been no such legislative steps (United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 152 (1952)) and our courts have continued with their application of the doctrine that nonconforming uses may not be enlarged as of right except where the enlargement is so negligible or insubstantial that it does not fairly warrant judicial or administrative notice or interference. See Heagen v. Borough of Allendale, 42 N.J. Super. 472 (App. Div. 1956); Kramer v. Town of Montclair, 33 N.J. Super. 16 (App. Div. 1954); Home Fuel Oil Co. of Ridgewood v. Bd. of Adjust. of Borough of Glen
The restriction against the enlargement of a nonconforming use as of right applies to the physical structure as well as its use. See Rockleigh Borough, Bergen County v. Astral Industries, 29 N.J. Super. 154, 161 (App. Div. 1953). And where there is doubt as to whether the enlargement is substantial rather than insubstantial it is to be resolved against the enlargement. See Heagen v. Borough of Allendale, supra, 42 N.J. Super. at page 482; Martin v. Cestone, 33 N.J. Super. 267, 271 (App. Div. 1954). In the instant matter, it appears clear that the proposed addition, which would add 260 square feet to the 1600 or 1700 square feet now on the first floor of the building, may not fairly be viewed as a negligible or insubstantial enlargement which the appellant could make as of right; the provision in R.S. 40:55-48 enabling continuance of his pre-existing nonconforming use gave him no such power and the implementing terms of Belmar's zoning ordinance expressly prohibited the extension or enlargement of any structure "devoted to or containing a nonconforming use." See Art. 14, sec. 1402. Since under the terms of the ordinance the appellant could not construct his proposed addition as of right, the building inspector properly refused to issue the permit, thus leaving the appellant with his privilege of appealing to the board of adjustment and seeking a discretionary variance under N.J.S.A. 40:55-39(d). See Ward v. Scott, supra; Monmouth Lumber Co. v. Ocean Township, 9 N.J. 64, 77 (1952); Mistretta v. City of Newark, 33 N.J. Super. 205 (Law Div. 1954).
The granting of variances from general zoning restrictions has been the subject of considerable discussion. See Ranney v. Istituto Pontificio Delle Maestre Filippini, supra; Ward v. Scott, supra; Gaylord, "Zoning: Variances, Exceptions and Conditional Use Permits in California," 5 U.C.L.A.L. Rev. 179 (1958); Green, "The Power of the Zoning Board of Adjustment ...