Goldmann, Foley and Drenk. The opinion of the court was delivered by Goldmann, S.j.a.d.
Dixon Associates, Inc. ("Dixon") appeals from a judgment of the Law Division affirming the denial by the Boonton Township Board of Adjustment of its application for a variance to build a two-unit bathhouse along the southerly shoreline of Dixon's Pond on land located in an R-1 residential zone.
On May 13, 1958 the board of adjustment recommended to the township governing body that Dixon be granted a variance to build the bathhouse, on condition that its club membership be limited to 50. The township committee formally approved the recommendation on June 3, 1958, and directed the building inspector to issue the necessary building permit. Although Dixon was advised that A. LeRoy Miller, an objector, intended to appeal the decision, it nevertheless proceeded with the construction of the bathhouse.
(The structure has since been completed.) Miller brought an action in lieu of prerogative writs (Docket L-10576-57 P.W.) seeking to set aside the variance and to enjoin construction of the bathhouse. The application for a stay was denied, but Dixon agreed that no equities were to run in its favor by reason of the construction.
When the Miller action came on for pretrial hearing it appeared that the record of the proceedings before the board of adjustment and the township committee did not set forth sufficient findings to justify the granting of a variance. Consequently, pursuant to a consent order entered October 21, 1958, the matter was remanded to the board of adjustment for reconsideration and the making of necessary findings after public hearing. The board held hearings on November 12 and December 3, 1958. Of the five members only four participated, one member disqualifying himself.
The board again met on April 14, 1959. Only three members were present. On motion that the requested variance be recommended to the township committee for approval, the vote was 2-1 in favor. However, since less than three members of the board concurred in the decision, the vote, by virtue of R.S. 40:55-41, had the effect of resulting in a denial of the variance.
Dixon then instituted an action in lieu of prerogative writs (Docket L-14006-58 P.W.) appealing the denial of the variance. This suit was consolidated with Miller's prior action by a consent order filed August 18, 1959.
The Law Division assignment judge heard the consolidated actions on January 4, 1960, on the basis of the record below, briefs and oral argument. In his oral decision, the trial judge stated that there was a presumption in favor of the validity of the board's decision, even though the majority of those voting favored granting it. The official act of the board, he said, was a denial of the application. Its action could be set aside only upon an affirmative showing of manifest abuse of discretion. It was not sufficient that he, as trial judge, would have reached a different conclusion: it
had to be clearly shown that the action of the board was arbitrary, capricious or patently unreasonable. The judge did not think that the proofs went that far; "we have a situation," he said, "where honest men might reasonably differ on the merits of the question presented." Accordingly, he entered judgment on January 25, 1960 dismissing the Dixon action with prejudice; declaring invalid the recommendation made by the board of adjustment to the township committee on May 13, 1958, as well as the subsequent resolution of the township committee approving the grant of a variance; adjudging the building permit issued to Dixon in accordance with that resolution to be void and of no effect; and ordering Dixon to remove the bathhouse it had constructed on or before March 15, 1960.
Thereafter the Law Division on May 10, 1960 made an order allowing Dixon 45 days to purge itself of contempt by removing the bathhouse, as required by the existing judgment. We entered a consent order staying both the contempt order and the mandatory injunction requiring removal of the bathhouse.
Dixon contends: (1) it was error for the trial court to accord a presumption of validity to the minority vote of the board of adjustment, since the denial of the variance was by operation of the statute rather than by majority vote; (2) the trial court erred in failing to affirm the findings of the majority of the board that the construction of the bathhouse was ancillary and incidental to the valid, nonconforming recreational use of the pond, and (3) the record before the board justified the granting of a variance for "hardship" or for "special reasons" under N.J.S.A. 40:55-39(c) or (d), respectively. Dixon has also filed a supplemental brief requesting that (1) in the event the judgment under appeal is reversed, we vacate the contempt order, and (2) in the event of an affirmance, we continue the stay previously granted until Dixon is foreclosed from further appellate remedies.
Dixon Pond was built in 1830 to supply water power for a forge. Sometime thereafter it was used as an ice pond, and icehouses were situated on the approximate site of the bathhouse. The pond and the lands immediately around it have been in the control of members of the Dixon family since at least 1898. As early as that year, the pond and its surrounding area were used by a group known as the Dixon Pond Association (organized in 1898) for recreational purposes -- mainly fishing. Originally there were only 20 members, but in the 1930's membership increased to 28. In addition, the Dixon family was allowed 20 members. This system continued from 1898 to 1955 when a new group was organized, the Dixon Pond Club. Title to the property passed from Cyrus Dixon, who died in 1936, to his estate, whose executors leased the premises to the Dixon Pond Club in January 1955. Title eventually went into Dixon Associates, Inc., incorporated about January 1958.
Dixon Associates, Inc. owns some 160 acres of land, including the pond itself. The pond covers approximately 50 acres; Dixon owns about 80 acres on one side of the pond and about 30 on the opposite side. The bathhouse is located on the 30-acre parcel, about 200 feet from the boundary line of Miller's property. Miller owns over 300 acres of land in the area, held for subdivision purposes. He has built 1,000 feet of macadam road and started construction of two homes at a cost of $44,000 and $50,000, respectively. The proposed subdivision is located about 800 feet from the site of the bathhouse.
The township zoning ordinance was adopted September 25, 1956. With respect to the R-1 residence district, article 7 provides that such district is designed for single-family residential use, but permits, among other things, accessory uses customarily incident thereto, provided they do not include any activity conducted for gain, ...