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Donovan v. Gabriel

Decided: October 27, 1959.


Goldmann, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D. Goldmann, S.j.a.d. (concurring).


Plaintiffs appeal from a judgment determining that defendants John M. Gabriel and Jack Gruber, partners trading as East Ridgewood Company (Gabriel and Gruber), have a nonconforming use on certain lands in the Borough of Paramus and that a building permit issued to them as owners of said lands is valid.

Gabriel and Gruber are the owners of a parcel of land located at the corner of the intersection of Ridgewood Avenue

and Paramus Road in Paramus. Plaintiffs are the owners of a contiguous parcel of land on Paramus Road lying to the south thereof.

In 1930 the Gabriel and Gruber property was owned by James Turner Ackerman and Clara Ackerman as tenants by the entirety. In that year the Ackermans constructed a gasoline service station and auto body repair shop on a portion of their premises at the corner of the intersection of the streets above referred to, of the dimensions of approximately 125 feet by 150 feet. This portion of the Ackerman tract admittedly has been used continuously for those purposes from 1930 to at least 1952.

Plaintiffs obtained title to their lands in 1937 and have used the same continuously from that year for residential purposes, having expended considerable sums thereon for improvements and beautification.

The Borough of Paramus adopted a zoning ordinance in 1946. Under the terms thereof the lands of plaintiffs and of the Ackermans were included in a one-family residential zone. In 1955 the borough adopted a revision of said 1946 ordinance which continued to restrict the lands of plaintiffs and the Ackermans for residential purposes. There is no dispute that in 1946 the operation of a gasoline service station and auto body repair shop was a legal nonconforming use. Plaintiffs, however, contend that in 1952 the gasoline service station feature of the use was abandoned.

James Turner Ackerman died in 1952 at the age of 92 years and his widow died in 1954 at the age of 86 years. In the settlement of her estate in 1955 the entire Ackerman tract, including the portion with which we are now concerned, was sold and conveyed to Gabriel and Gruber. Some time subsequent to the acquisition of title by Gabriel and Gruber, the service station building, which had been vandalized by some juveniles, was boarded up at the direction of the building inspector.

Shortly after the acquisition of title, Gabriel and Gruber made application to the Paramus Zoning Board of Adjustment

for a variance, seeking to construct a supermarket on the tract owned by them. Plaintiffs were instrumental in obtaining 500 signatures from persons living in the vicinity to a petition objecting to this variance, and thereafter in persuading the borough council to deny it.

Application was then made on behalf of Gabriel and Gruber for leave to construct a new gasoline service station. Plaintiffs again spearheaded a movement to object to the issuance of a building permit for this purpose, and were successful in preventing the issuance thereof.

Thereafter, in April 1957, Daniel P. Lieblich, Esquire, counsel for defendants Gabriel and Gruber, conferred with the borough clerk and the borough building inspector concerning the obtaining of a certificate of occupancy of the building in the condition in which it then existed, for use as a gasoline service station and auto body repair shop. He was advised by the building inspector that no certificate of occupancy would be issued unless and until various items of repair had been made to the premises, and that application should be made for a building permit in order to make such repairs to the premises. The building inspector also suggested that a new curb line be constructed along the southerly line of East Ridgewood Avenue. Lieblich thereupon prepared an application for a building permit, which read, in part, under the title "Zoning Data":

"13. If an existing structure, what is its present use? Repairing, storage & servicing of autos. Will there be any change of use? No."

The application, having been signed by Gabriel and Gruber, was forwarded by Lieblich to the building inspector, with a covering letter, which read, in part:

"It is my understanding that the following work is to be accomplished under the building permit:

Electrical wiring repaired, or replaced, ceiling in one room to be secured, partitions replaced where necessary, securing of two lintels, repairing of broken windows, replacement of heating system, and checking of the sanitary facilities. Additionally, in accordance with

your suggestions, a curb line will be constructed along the southerly side of East Ridgewood Avenue to brake the traffic in accordance with the suggestion advanced heretofore by Tremarco Corporation for this plot.

It is my further understanding that when these repairs are completed you will issue a certificate of occupancy and my client will immediately thereafter be enabled to use these premises for the repairing, storage and servicing of automobiles. I shall appreciate it if you will confirm the last statement. You may do so returning to me the copy of the letter indicating your approval thereon."

The building permit was thereupon issued on November 27, 1957. Donald D. Donovan concededly had knowledge of the ...

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