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Marino v. Mayor and Council of Borough of Norwood

Decided: January 2, 1963.

FRANK C. MARINO AND ANGIE T. MARINO, HIS WIFE, AND FRANK MODAFFERI AND ETHEL MODAFFERI, HIS WIFE, PLAINTIFFS,
v.
HONORABLE MAYOR AND COUNCIL OF THE BOROUGH OF NORWOOD, AND ALOIS OAKES, BUILDING INSPECTOR OF THE BOROUGH OF NORWOOD, DEFENDANTS



G. H. Brown, J.c.c. (temporarily assigned).

Brown

The parties to this action in lieu of prerogative writs have, by stipulation, recast the controversy so as to submit a narrow question of fact for determination.

At issue is the use status of premises known as 475 High Street in the Borough of Norwood, Bergen County. The property was restricted to one-family use by a zoning ordinance of that municipality enacted in 1948. Without dispute, the structure then was actually a two-family residence. It is acknowledged by the borough that the resultant nonconforming use could be continued thereafter because of the enabling effect of R.S. 40:55-48. But a building permit to renovate the structure has been denied for reason of an alleged abandonment of the nonconforming use.

During the full period under review the interior physical layout of the two-story building has remained unchanged. On the first floor there have been a living room, a bedroom and a kitchen. A living room, two bedrooms and a kitchen have been located upstairs. A first-floor bathroom off a common hall and not connected with either apartment has been available to both.

Testimony in the plaintiffs' case presented the history of use since 1945. In that year Pietro Gaggini, the owner, lived with his wife on the ground floor. His daughter, Mrs. Geonardi, occupied the second floor with her children. She paid rent. This family division of the two apartments continued for a number of years. It appears to have still been in effect during 1950, according to the testimony of Arthur P. Haviland, presently the borough mayor. In 1951 the Bartoli family became tenants in the first-floor apartment after the Gagginis moved upstairs with the Geonardis. The Bartolis were followed by Fletta Thompson, who took their first-floor apartment as a paying tenant in March 1952. In September there was a transfer by which Mr. Gaggini went to the first floor (his wife had died in November 1951) and Mrs. Thompson, with her sister, took occupancy above. This was the arrangement until 1954.

In 1954 Mrs. Thompson's sister left the premises. Mrs. Thompson remained alone on the second floor. Mr. Gaggini continued occupancy below. It is at this point in the chronology that the clear, two-family pattern was disturbed. Mrs. Thompson testified that the upstairs apartment was "not rented" from 1954 to 1957. It must be concluded, from the plaintiffs' proof, that although Mrs. Thompson continued to live in the second-floor apartment, there was no two-family use of the premises during this interval of time.

A paying tenant moved into the second floor in 1957. Mrs. Giordano with her children rented the apartment for $65 monthly. They were there for nine months. Mrs. Thompson was with Mr. Gaggini below during the day but she slept in an upstairs room at night. Mrs. Giordano's occupancy was

followed by the Darby tenancy on the second floor, with Mrs. Thompson still using one of the bedrooms at night. Tenants by the name of Van Hentenrich succeeded to the Darby use. They left in September 1960. No one lived on the second floor after that except Mrs. Darby, who had returned to the house to care for Mr. Gaggini in his illness. She used an upstairs room for sleeping. By this time Mrs. Thompson was living on the first floor with Mr. Gaggini. He died in June 1961.

The foregoing development of the facts emerged from the plaintiffs' case. No antagonistic evidence was adduced by the defendants. Mr. Alois Oakes, building inspector for the borough, testified that he had no knowledge concerning the use made of the premises since 1954.

The borough argues abandonment of the nonconforming use for two families. Its contention is not derived from treating as crucial the hiatus between 1954 and 1957 when the second-floor apartment was unrented. Nor is abandonment claimed because there was no further rental of the upstairs rooms after September 1960. Such argument would be met with well established authority draining significance out of inactive user, per se. Thus, in State v. Accera , 36 N.J. Super. 420 (App. Div. 1955), a broad review of case law was summed up:

"Turning then to the inquiry stated, we find it to be settled that a nonconforming use may be continued under certain circumstances even though the use has not been exercised for a substantial period of time. The ...


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