Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
The Law Division sustained the action of the Board of Adjustment of the Borough of Park Ridge which "reversed" the action of the building inspector in halting the paving of a parking area for a restaurant. The resolution, dated June 1, 1961, recited that at an "Executive Meeting" of the board of the same date it had been determined that a "request" to "permit the paving of the parking area" had been granted on certain specified conditions. Plaintiffs, who are neighboring property owners, appeal.
We do not propose to state all the facts appearing in or inferable from the record as the action of the board must be set aside for procedural deficiencies of a substantial nature, and a new and more complete set of facts will undoubtedly be developed on the remand to the board. Suffice it to say that defendant Alineri Holding Co., or its principals, has been operating a restaurant near the rear of a tract of land fronting on Spring Valley Road in Park Ridge almost 40 years. The tract is about 263 feet in frontage and 515 feet in depth. Until 1958 the rear portion of the property, where the restaurant building stands, was a part of the Township of Washington, while the remainder was in Park Ridge. At that time an area inclusive of the rear of the tract was annexed by Park Ridge. The original Park Ridge portion of the property has been zoned residential since the adoption of its zoning ordinance in 1923. Restaurant uses are not permitted therein.
Alineri claims that it has used the front portion of the tract as a parking area for the restaurant since before 1923. Plaintiffs contend to the contrary, asserting that in 1923 the restaurant was substantially smaller than now and had a small parking area behind the building; and that very little, if any, of the land in front of the building was used for parking prior to the enlargement of the restaurant about 1958. It is asserted that almost all of the tract in Park Ridge was woodland in 1923 and for a long time thereafter. It is not disputed, however, that access to the restaurant has always been over a driveway from Spring Valley Road over one side of the Park Ridge portion of the tract.
When, early in 1961, Alineri began to pave a substantial portion of what it claimed to be its regular parking grounds, plaintiffs protested to the building inspector. He stopped the work and informed Alineri that it would have to obtain a "special permit" from the board of adjustment. Alineri proceeded to file an "application" with the board on its printed form, stating "applicant desires to complete paving of parking area * * *. Applicant contends it does not need a permit or variance." A rough sketch of the site and of the area of the proposed paving was annexed to the application.
The board conducted a hearing. Minutes were taken of the substance of the proceedings by the recording secretary of the board, but no verbatim stenographic transcript of the hearing was made. From these minutes it is clear that the board was uncertain whether it was conducting an appeal from the building inspector's action (N.J.S.A. 40:55-39 (a)), an application for a variance from the restrictions of the zoning ordinance ((d) of the same section), or both. The testimony taken was sketchy and vague. Much of the hearing bore upon matters irrelevant to either type of proceeding. The minutes of the "Executive Meeting" and the resolution adopted the same day are devoid of any findings of fact, legal conclusions, or reasons for variance purporting to have been adopted by the board as a body. The minutes indicate a different view of the nature of the proceedings by each of the three sitting
members of the board. The only expression by the board as a whole is of the grant of permission to Alineri to go ahead with the paving. There is no basis for the argument by defendants that the board's action is sustainable as a special exception under N.J.S.A. 40:55-39 (b). Not only does it not purport to be such, but the Park Ridge ordinance does not provide therefor.
For reasons which have been explained too many times in the past to require restatement now, the action of the board is fatally defective and must be set aside. See Tomko v. Vissers , 21 N.J. 226 (1956); Dolan v. DeCapua , 16 N.J. 599 (1954); Reinauer Realty Corp. v. Paramus , 34 N.J. 406 (1961); Kempner v. Edison Tp. , 54 N.J. Super. 408 (App. Div. 1959).
Alineri argues that the procedural deficiencies may be disregarded on the substantive ground that its use of the parking area does not violate the residential restriction of the zoning ordinance, and that therefore it need not have applied to the board in the first place. The contention is that parking of automobiles incidental to the operation of a restaurant does not constitute such parking a commercial use, and that therefore it makes no difference whether the area now sought to be used for such parking, although in a residential district, was used for that purpose when the nonconforming restaurant use began. We are in emphatic disagreement. See Palisades Properties, Inc. v. Brady , 79 N.J. Super. 327, 342-343 (Ch. Div. 1963); and cases cited therein at the pages indicated; 1 Rathkopf, Law of Zoning and Planning (3 d ed. 1962), 13-9; Village of Great Neck Estates v. Bemak and Lehman , 228 N.Y.S. 917 (App. Div. 1928), affirmed 248 N.Y. 651, 162 N.E. 562 (Ct. App. 1928); City of Yonkers v. Rentways, Inc. , 304 N.Y. 499, 109 N.E. 2 d 597 (Ct. App. 1952); Commonwealth v. Cieslak , 179 Pa. Super. 441, 115 A. 2 d 418 (Super. Ct. 1955). The predominant viewpoint, as reflected by the authorities cited, supports the position that land used as a means of access to, or for the parking of vehicles of patrons of, a business, is in a use accessorial to the business and
thus is itself in legal contemplation being used for the business purpose in question. Such use therefore contravenes a zoning ordinance which restricts the parking or access land to residential uses. We are in accord. Cf. Rain or Shine Box Lunch ...