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Tullo v. Township of Millburn

Decided: March 6, 1959.

HARVEY TULLO AND IRMGARD TULLO, HIS WIFE; ROBERT L. KLAAS AND VIVIAN KLAAS, HIS WIFE; LELAND G. SUTHERLAND AND DOROTHY SUTHERLAND, HIS WIFE; ARTHUR A. SCHUCK AND OLIVE SCHUCK, HIS WIFE; JOHN O. BRENNAN AND EDNA BRENNAN, HIS WIFE; SUMNER H. WILLIAMS AND RUTH WILLIAMS, HIS WIFE; JACOB H. OXMAN AND KATHERINE OXMAN, HIS WIFE; AND WILLIAM K. SIMS AND MAE SIMS, HIS WIFE, PLAINTIFFS, AND MORRIS MESSING AND HELEN MESSING, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
THE TOWNSHIP OF MILLBURN IN THE COUNTY OF ESSEX, A MUNICIPAL CORPORATION OF NEW JERSEY, BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MILLBURN AND SHORT HILLS CLUB, A CORPORATION OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Price, Hall and Gaulkin. The opinion of the court was delivered by Hall, J.A.D.

Hall

[54 NJSuper Page 488] This appeal is taken from a judgment of the Law Division in favor of defendants in an action in lieu of prerogative writ which sustained the recommendation of defendant board of adjustment and the approval by the Millburn Township Committee of a special exception to defendant Short Hills Club for the construction of an addition to its clubhouse and an outdoor swimming pool adjacent thereto. The plaintiffs below are nine neighboring property owners who objected to the pool before the municipal bodies. There was no objection there or attack in this litigation on the building addition. Only plaintiffs Messing have appealed the judgment.

We are principally concerned with the following provision in the township zoning ordinance, applicable to all zones (residential, business and industrial):

"SCHOOLS, HOSPITALS, CLUBS, COMMUNITY CENTER BUILDINGS, SANITARIUMS & CEMETERIES. Recognizing the necessity for schools, hospitals, clubs, sanitariums and cemeteries, and at the same time the fact that they may be inimical to the public health, safety and general welfare, if located without due consideration of conditions and surroundings, the following procedure is ordained for their establishment:

An application for a permit for a school, other than a public school, a hospital, a club-house, a sanitarium, or a cemetery, shall be made first to the Board of Adjustment, which shall hear the application in the same manner and under the same procedure as the Board of Adjustment is empowered by law and ordinance to hear cases and make exceptions [ sic; reference seems intended to be made to variances ] to the provisions of a zoning ordinance, and the Board of Adjustment may thereafter recommend to the Township Committee that a permit be granted for a school, a hospital, a club-house, a sanitarium, or a cemetery, if in its judgment said school, hospital, club-house, sanitarium or cemetery, as it is proposed to be located, will not be detrimental to the health, safety and general welfare of the community, and is reasonably necessary for the convenience of the community, whereupon the Township Committee may by resolution approve or disapprove such recommendation, and in case such recommendation shall be approved, and all statutory and other municipal requirements shall be complied with, the administrative officer in charge of granting permits shall forthwith issue a permit for such structure or use subject to such requirement as to front, side and rear yards, and other reasonable restrictions as to structure or use as the governing body may see fit to impose."

Authority for special exception provisions in a zoning ordinance is derived from R.S. 40:55-39(b), as amended, granting power to boards of adjustment to hear and decide requests therefor "in accordance with the provisions of any such ordinance," i.e. , on affirmative finding from the proofs before it that the standards specified in the ordinance have been met, plus negative findings from the proofs, as required by this statutory section as to both exceptions and variances, that the exception will be "without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance."

The situation here involved is gleaned from the record before the board of adjustment on which the township committee acted and the review had in the trial court. It may be observed that the participation of the municipal governing body in the exception procedure in this ordinance goes beyond the statutory scheme, the latter reposing exclusive authority in the board of adjustment. Our Supreme Court has held, however, that the board's place in such instances may be made merely recommendatory by the local ordinance, with final approval reserved to the governing body. Schmidt v. Board of Adjustment of City of Newark , 9 N.J. 405, 419-420 (1952). (The Millburn ordinance provision appears to be practically identical with respect to standards and procedure as that before the court in Schmidt (9 N.J. at pages 411-412).) When the governing body is thus brought into the scheme, its function is akin to that committed to it in case of a variance under R.S. 40:55-39(d), as amended.

The club is a private membership organization organized in 1875 and incorporated in 1923. Prior to 1928 its club-house and related facilities were located in another section of the township. In that year it acquired its present site. Plaintiffs concede that in the same year it was granted a permit by the board of adjustment in accordance with the then ordinance for an exception for club use at that location and that the use so allowed and as presently operated is a permissive and not a nonconforming one.

In order that our subsequent discussion of the issues in this case may be viewed in their proper legal perspective, we interrupt the factual narrative to comment on the true nature of a "special exception" under our statute. The term might well be said to be a misnomer. "Special uses" or "special use permits" would be more accurate. The theory is that certain uses, considered by the local legislative body to be essential or desirable for the welfare of the community and its citizenry or substantial segments of it, are entirely appropriate and not essentially incompatible with the basic uses in any zone (or in certain particular zones), but not [54 NJSuper Page 491] at every or any location therein or without restrictions or conditions being imposed by reason of special problems the use or its particular location in relation to neighboring properties presents from a zoning standpoint, such as traffic congestion, safety, health, noise, and the like. The enabling act therefore permits the local ordinance to require approval of the local administrative agency as to the location of such use within the zone. If the board finds compliance with the standards or requisites set forth in the ordinance, the right to the exception exists, subject to such specific safeguarding conditions as the agency may impose by reason of the nature, location and incidents of the particular use. Without intending here to be inclusive or to prescribe limits, the uses so treated are generally those serving considerable numbers of people, such as private schools, clubs, hospitals and even churches, as distinguished from governmental structures or activities on the one hand and strictly individual residences or businesses on the other. This method of zoning treatment is also frequently extended to certain unusual kinds of strictly private business or activity which, though desirable and compatible, may by their nature present peculiar zoning problems or have unduly unfavorable effect on their neighbors if not specially regulated. Gasoline stations (also treated as special exceptions in the business and industrial zones in the Millburn ordinance and the subject of the ordinance provision under review in the Schmidt case) are an example of this second category. The point is that such special uses are permissive in the particular zone under the ordinance and neither non-conforming nor akin to a variance. The latter must be especially clearly distinguished. In the sense here discussed it relates primarily to the allowance of a use of a particular property prohibited in the particular zone for "special reasons." R.S. 40:55-39(d), as amended. Moriarty v. Pozner , 21 N.J. 199, 210-211 (1956); Ranney v. Istituto Pontificio Delle Maestre Filippini , 20 N.J. 189, 198-199 (1955); Schmidt v. Board of Adjustment of the City of Newark, supra. Cf. Rockhill v. Township of Chester-field, Burlington County , 23 N.J. 117 (1957); Borough

of North Plainfield v. Perone , 54 N.J. Super. 1 (App. Div. January 28, 1959). 1 Yokley, Zoning Law and Practice (2 d ed. 1953), ยง 133; 1 Metzenbaum, Law of Zoning (2 d ed. 1955), p. 813 et seq.

The club property then and now comprises 12 acres, four of which constitute a body of water known as South Pond, lying between Highland Avenue on the west and Lake Road on the east, in the high class Short Hills residential section of the township. The principal frontage is on Lake Road. There are vehicle entrances from both that road and Highland Avenue. Near the center of the tract, which is described as having a large number of trees on it, is the clubhouse erected in 1928. It is a substantial building and contains a large lounge, dining rooms, bedrooms for guests, kitchen, grill, squash courts, locker rooms, servants quarters and other facilities. Surrounding it on the grounds are parking areas for 90 to 95 automobiles, a considerable number of tennis courts and paddle tennis courts, terraces and a garage and service building. The courts and parking areas are located generally between the clubhouse and its residential neighbors. From the beginning of operations at the site, about 30,000 square feet or so of the pond, which touches Lake Road on the east and Lake Shore Drive on the south, have been used for swimming and located there are a swimming house, docks, floats, diving boards and a children's swimming crib.

Through the years the club has been used for social, recreational and athletic activities by its members and guests both in daytime and at night. It appears that the general nature of these activities has remained substantially the same. Presently there are about 275 members, whose families, including 327 children 16 years of age or under, use the facilities. Ninety percent of the membership are residents of the township, most of whom live within a rather short distance.

The club property is roughly near the center of the AA residence zone, the most restricted of the four one-family residence districts ...


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