Price, Sullivan and Foley. The opinion of the court was delivered by Price, S.j.a.d.
Defendants appeal from a judgment of the Superior Court, Law Division, setting aside a variance which, under N.J.S.A. 40:55-39, subd. d , had been recommended by the Board of Adjustment of Allendale and approved by the mayor and council of that borough.
There is no substantial controversy as to the material facts. They are outlined in detail in an opinion of this court (Heagen v. Borough of Allendale , 42 N.J. Super. 472 (App. Div. 1956)) involving the property which is the subject of the present suit.
Defendants Job have operated a tavern and restaurant on the property in question in the Borough of Allendale for over 30 years. The building on the property owned by defendants Job is a 2 1/2-story building, residential in appearance, located in the one-family residential zone under the borough's zoning ordinance adopted in 1929. As the operation of the business antedated the passage of the ordinance the aforesaid continued use of the property was nonconforming, protected by N.J.S.A. 40:55-48.
It is noted that the premises in question are situated on a "heavily traveled county road." On one side of the property is a right of way used for the "transmission of power." The opposite side is bounded by a single residential parcel owned and used as a residence by the property owner's mother and father. This latter property separates the premises in question from the adjacent industrial zone, and, under the zoning ordinance, 120 feet of said parcel contiguous to the industrial zone, may be used for parking. The industrial zone abuts the Erie Railroad line. However the properties in the residential zone in question are in the main occupied as one-family dwellings for which the area is zoned as aforesaid. Plaintiffs are property owners within said residential zone.
Prior to 1929 the aforesaid use of the subject property was confined to the first floor and to one room on the second floor measuring approximately 20' x 30'. This room was used for dining and for meetings. The remainder of the second floor was occupied as living quarters by the owner and his family. In 1952 a fire damaged the premises. Thereafter existing partitions on the second floor were removed and the entire floor was converted to accommodate a kitchen and a dining room, measuring 30' x 44'. In 1954 a 13.6' x 29.6' addition to the floor was constructed. Although the use of the second floor was originally limited as aforesaid, in recent years it was expanded to include music and dancing.
In 1954 defendant borough adopted an amendment to its zoning ordinance which created, as set forth in Heagen, supra ,
"in the residential district a small isolated business district," comprising the premises in question and adjoining premises owned by the mother of the tavern owner. The Heagen suit was then instituted to invalidate the amendment, to enjoin the owners "from enlarging the nonconforming use," to compel the "borough officials to enforce the zoning ordinance" against the owners and for incidental relief therein outlined.
The amendment was condemned as spot zoning and we enjoined the owners "from using the second floor of the building for dining and meeting purposes, except within the area of 20' x 30', above stated, where the dining and meeting room was formerly located." We further enjoined "the use of the entire second floor for dancing or music for dancing." (Heagen , 42 N.J. Super. at page 488)
Defendants then made application to the board of adjustment for a variance to permit the use of the entire second floor, including the above mentioned addition, for dining and dancing. The variance was recommended and the mayor and council subsequently approved such recommendation. Plaintiffs appeared before the board and before the mayor and council to protest the granting of the variance. After approval by the mayor and council this suit was instituted. As above stated, the trial court set aside the variance and defendants appealed. After the appeal had been argued the Supreme Court announced its decision in Grundlehner v. Dangler , 29 N.J. 256 (1959). Pursuant to the direction of this court counsel submitted supplemental briefs and reargued the appeal to present their respective views as to the application of the Grundlehner decision to the facts of the instant case.
Appellants' main contention is that there was competent evidence to support the action of the local zoning authorities and that the trial court was without authority to set it aside.
N.J.S.A. 40:55-39 provides that:
"The board of adjustment shall have the power to * * *
d. 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 * * *." (Emphasis supplied.)
In Grundlehner, supra , 29 N.J. at page 271, the Supreme Court said:
"The grant of any variance under N.J.S.A. 40:55-39(d) is exceptional relief which must meet not only the negative statutory criteria but also the affirmative statutory requirement of one or more 'special reasons' which must be set forth by the municipal officials in clear and explicit terms and in detail. (Whitehead v. Kearny Zoning Bd. of Adjustment, supra , 51 N.J. Super. 560, at page 570); this requirement is of the utmost importance not only in insuring just and responsible municipal action but also in affording to the court a proper basis for judicial review."
Guided thereby we consider the findings of the board of adjustment. It recommended the granting of the variance for the following reasons:
"A. Since all Board members are personally familiar with the physical layout of the premises we feel that it will not substantially impair the intent of the zone plan and zoning ordance [ordinance] nor will it be a detriment to the public welfare.
1. Industrial zone nearby.
3. Located on heavily traveled ...