On appeal from the Municipal Court of the Borough of Northvale.
Defendant was charged with not housing a commercial vehicle overnight on his residential property, in violation of a Northvale zoning ordinance. He was convicted in the municipal court and has appealed.
In this trial de novo there is no factual dispute. On July 24, 1963, at about 9 P.M., defendant's Ford Falcon panel station wagon was parked in the driveway of his one-family dwelling at 413 Birchtree Lane. Lettering on the sides of the vehicle prominently advertised defendant's business conducted elsewhere. The station wagon had been used by defendant for transportation home that day from his business place. He intended to use it for return to work the next morning. This
course of conduct had regularly been followed by defendant since before June 12, 1963, when an amendment of the zoning ordinance explicitly prohibited such overnight parking of a commercial vehicle outside a garage.
It is the defendant's contention that enforcement of the amendment in his case is illegal because it deprives him of a valid nonconforming use. He further defends on the ground that his practice constitutes an accessory use which the amendment cannot affect.
The defendant lives in an "'A' residence" district, according to the basic zoning ordinance enacted in 1955. In Article V thereof the dwelling use is expressly allowed. Although the ordinance does not in terms permit uses incidental or accessory to the dwelling use, they must ordinarily be implied as an inalienable right. The allowance of a primary use generally authorizes all uses normally accessory, auxiliary or incidental thereto. Zahn v. Newark Board of Adjustment , 45 N.J. Super. 516 (App. Div. 1957). The defendant says that when he parked the subject vehicle in his driveway overnight he was making such a use of the premises. This is so, he argues, because he needed it for transportation to and from the place where he earns his living.
Can the defendant's practice with respect to the presence of his station wagon in the driveway rise to the dignity of a "nonconforming use," in the sense of that term in zoning law? R.S. 40:55-48 provides:
"Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the building so occupied * * *."
Was there in this case a "use" of the kind contemplated by the statute and therefore invulnerable to the 1963 prohibition?
In his article "Control of Land Use in New Jersey," Professor Roger A. Cunningham has collected decisional law bearing on the issue of nonconforming use enlargement. 14 Rutgers L. Rev. ...